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A  TKKATISE 


DN  Tiin 


AMERICAN  LAW 


OF 


YENDOR  A^D  PURCHASER 


OF 


FvEAL  PROPERTY. 


BY 

GEO.  ^Y.  WARVELLE, 

ArTHOK  OF  A  Treatise  ox  Absthacts  of  Title,  etc. 


YOLUME   I. 


CHICAGO: 

CALLAGHAN   AND  COMPANY. 

1890. 


Copyright,  1890, 

BY 

GEO.  W.  WARVELLE. 


r 

UJZ675v 
\^0 


DAVID   ATWOOD, 

Printer  and  Stereotyper, 

madison,  ■wis. 


TO 

HON.  BENJAMIN  D.  :MAGRUDER, 

Justice  of  the  Supreme  Court  of  Illinois, 

THIS  work  is 

Respectfully  Inscribed  by 

THE  AUTHOR. 


75G0i  8 


PREFACE. 


The  law  of  Vendor  and  Purchaser,  once  replete  with  many 
subtile  qualifications  and  distinctions,  has  in  the  United  States 
been  reduced  to  a  comparatively  simple  code,  Restraints  on 
alienation  have  been  generally  abolished;  land  is  no  longer 
held  by  pi'ecarious  tenures;  and  the  rules  which  govern  the 
sale  and  transfer  of  real  property,  reflecting  the  enlighten- 
ment of  this  commercial  age,  have  been  made  to  conform 
more  closely  to  those  which  prevail  in  other  commercial  trans- 
actions. ]\Iuch  of  the  simplification  of  this  subject  has  been 
accom|)Iished  in  recent  years,  and  in  this  work  an  attempt 
has  been  made  to  compile  the  cases  which  illustrate  the  de- 
velopment of  the  distinctively  American  phases  of  the  law. 

In  the  performance  of  this  task  the  author  realizes  the  grave 
responsibility  of  the  duties  he  has  assumed.  The  xVmerican 
law  of  real  property  has  passed  through  many  changes  during 
the  brief  period  of  our  national  existence,  and,  as  yet,  can 
hardly  be  said  to  have  emerged  beyond  a  formative  period. 
The  varying  devices  of  state  and  national  policy,  as  well  as  the 
ever-changing  complications  which  arise  in  the  ordinary  af- 
fairs and  transactions  of  the  people,  are  constantly  producing 
new  combinations  and  presenting  new  features  for  adjustment 
and  determination.  Thus  it  is  that  old  doctrines  become  ob- 
solete, and  new  applications  of  legal  princijiles  must  be  made 
to  meet  the  exigencies  of  the  times.  Uniformity  in  legislation 
and  harmony  in  judicial  construction  would  render  light  the 
burdens  of  the  codifier;   but,  unfortunately,  the  spirit  of  na- 


VI  PREFACE. 

tional  unity  does  not  extend  beyond  the  scheme  of  govern- 
vnont,  and  in  the  enactment  and  interpretation  of  the  laws 
Avhich  regulate  and  control  the  disposition  of  real  property  no 
two  of  the  states  are  exactly  alike. 

The  very  flattering  reception  that  has  been  accorded  to  the 
authors  former  efforts  emboldens  him  to  hope  that  this  work 
may  be  equally  acceptable,  and  with  the  expression  of  this 
hope  he  presents  it  for  the  judgment  of  an  indulgent  pro- 
fession. G.  W.  W. 

Chicago,  Feb.  1,  1890. 


TABLE  OF  CONTEXTS. 


PAET  I. 

THE  CONTRACT  OF  SALE. 

CHAPTER  I. 

THE  SUBJECT-MATTER. 
Art.  I.     The  Property. 

PAGE. 

§  1,     Introductory 1 

2.  Real  property  cousidered 2 

3.  Land 3 

4.  Minerals "^ 

0.     Cj  rowing  crops '* 

6.  Trees  and  herbage ^ 

7.  Maniire ^ 

8.  Appurtenances 6 

9.  Houses  and  buildings 7 

10.  Fixtures 8 

11.  Continued  — Rule  for  determination 10 

12.  Mortgaged  chattels  afHxed  to  realty 14 

13.  Chattels  left  upou  land ^ 17 

14.  Land  under  water 17 

15.  Water 1^ 

IG.     Ice 21 

17.  Church  pews 23 

18.  Property  in  adverse  seizin  of  third  person 24 

19.  Franchises 26 

Art.  II.    The  Estate. 

§  1.     Definition 27 

2.  Estates  at  common  law 27 

3.  Estates  under  the  statute 29 

4.  Fee-simple 30 

5.  Fee-tail    31 

6.  Estates  for  life 32 

7.  Dower 34 

8.  Curtesy 36 

9.  Homesteads 37 


VUl  TABLE   OF   CONTENTS. 

PAGE. 

§  10.  Estates  for  years 3S 

11.  Estates  at  will  and  by  sufferance 139 

12.  Joint  estates 40 

13.  Estates  by  entirety 42 

14.  Easements 43 

15.  License 45 

16.  Contingent  interests  and  estates 46 

17.  Powers 4G 

Art.  III.    The  Title. 

5^  1.  Title  generally  considered 47 

2.  Classification 48 

3.  Acquisition  and  disposal '. .  49 

4.  Derivation  and  nature  of  title J30 

5.  Marketable  title  defined 50 

6.  Derivative  titles  —  Descent 51 

7.  Tax  titles 52 

8.  Color  of  title 5-1 

9.  The  right  to  the  possession  of  title  deeds 54 


CHAPTER  II. 

THE  PARTIES. 
Art.  I.    Persons  Sui  Juris. 

§  1.     Generally 56 

2.  Vendors 56 

3.  Vendees 57 

4.  Parent  and  child .• 58 

5.  Expectant  heirs 58 

6.  Co-tenants GO 

7.  Partners CI 

8.  What  shall  be  considered  partnership  property 63 

9.  How  affected  by  death  of  partner 65 

10.  Widow's  dower  in  partnership  realty 66 

11.  Corporations 67 

12.  Assignees 67 

13.  Assignors 68 

Art.  II.    Persons  under  Disability. 

§  1.     Aliens 70 

2.  Infants 73 

3.  Married  women 75 

Art.  III.    Persons  Incompetent. 

§  1.     Lunatics 78 

2.  Imbeciles 79 

3.  Drunkards 81 


TABLE    OF    CONTE.NTS.  IX 

AliT.    IV.      FiDUCIAniES. 

PAOF. 

^   1.     (ieiKT.-il  ])riiiciples Hi 

2.     Trustees 84 

;!.     Rlortgagees oG 

4.  Executors  and  administrators S7 

5.  Continued  —  Executors H7 

0.     Continued  —  Adinini&trators  ....    88 

7.  (Uiardians TO 

8.  Truhtees  as  purchasers  —  The  rule  stated   CO 

9.  Continued  —  Excejitions  to  and  (jualifications  of  the  rule i."i 

CJIAPTEK  III. 

THE  MEMORANDUM. 

^'  1.     Contract  and  memorandum  distinguished 04 

2.  Statutory  requirements  ....    It") 

3.  The  signature 'J7 

4.  Signature  of  one  party  only  sufficient V.) 

5.  Signature  by  agent ICO 

6.  Signature  by  corpcration 101 

7.  Tile  contracting  parties 103 

8.  The  terms 102 

9.  Tlie  consideration 104 

10.  Tlie  purchase  price 105 

11.  Description  of  tlie  property 106 

12.  The  interest  to  be  conveytd 107 

18,     Time 108 

14.  Receipts 110 

15.  I,ettcrs 110 

IG.     Telegrams 114 

17.     Delivery 1 1  "5 

CHAPTER  IV. 

CONSTRUCTION  OF  LAND  CONTRACTS. 

§  1.     General  principles 110 

2.  When  construction  is  for  the  court 1 18 

3.  When  for  the  jury 119 

4.  Intention  of  the  jiarties 120 

5.  Construction  deduced  from  acts 121 

0.     When  construction  should  favor  either  party 122 

7.  Entire  and  separable  contracts 123 

8.  Implication 123 

9.  Mutual  and  dependent  undertaliings 123 

10.  Precedent  and  contemporaneous  acts 124 

11.  Admission  of  parol  evidence 123 


X  TABLE   OF   CONTENTS. 

PAGE. 

§  12.  Continued  —  Collateral  matters  and  conditions 127 

13.  Surrounding  circumstances  and  pre-existing  relations 129 

14.  Usage  and  custom 130 

15.  Ambiguitieg 130 

IG.  Technical  phrases 133 

17.  Contemporaneous  writings 134 

18.  Continued  —  When  variant  from  each  other 136 

19.  Unintelligible  expressions 136 

20.  Printed   blanks 136 

21.  Interlineations  —  Erasures 137 

22.  Proposals  and  offers ■. 138 

23.  Acceptance 140 

24.  Operation  and  effect 142 

25.  Eecitals 144 

26.  Contracts  for  repurchase 1 44 

27.  Bond  for  conveyance 146 

28.  The  description 146 

29.  Continued  —  Unlocated  land 149 

30.  Continued  —  History  of  title 150 

31.  Description  by  designation 152 

32.  The  medium  of  payment 153 

33.  Conditions  in  avoidance 155 

34.  Time  of  performance 150 

35.  Computation  of  time 157 

36.  Assignment  of  contract  for  security 157 

CIIxVPTER  Y. 

VALIDITY  OF  LAND  CONTRACTS. 

Art.  I.    Generally  Considered. 

§  1.  Preliminary  remarks 159 

2.  Executed  contracts 160 

3.  Agreements  prohibited  by  statute 160 

4.  Agreements  against  public  policy 162 

5.  Agreements  void  in  part 164 

6.  Sunday  contracts 165 

7.  Agreements  to  convey  by  will 166 

8.  Contracts  pxocured  by  fraud 1 67 

9.  Ante-nuptial  contracts 167 

10.  Post-nuptial  contracts 168 

Art.  II.    As  Affected  by  the  Statute  of  Frauds. 

%  1.  General  effect  of  the  statute 170 

2.  Entire  contract,  void  in  part 171 

3.  Defense  of  the  statute  —  By  whom  available  171 

4.  What  contracts  must  be  in  writing 172 

5.  The  produce  of  land 174 


TABLK    OK   C(»NTi:XTS.  XI 

PAGE. 

§6.  Standing  trees 173 

7.  Growing  crops 177 

8.  Ruined  walls  and  buildings 178 

9.  Buildings  to  be  removed 179 

10.  License  to  flood  lands 171> 

11.  License  for  right  of  way 179 

12.  Parol  reservations. 179 

13.  Agreements  to  exchange 180 

14.  Collateral  agreements 180 

15.  Partnership  agreements  for  dealing  in  lands 181 

16.  Ante-nuptial  agreements 18;i 

CHAPTER  Vr. 

THE  RELATION  OF  THE  PARTIES. 

§  1.  Generally  considered 185 

2.  Option  of  purchase 187 

3.  When  equitable  title  vests 188 

4.  Death  of  one  of  contracting  parties 188 

5.  Subsequent  insolvency  of  the  parties 190 

G.  Payment  of  taxes 191 

7.  Interest  —  Rents  and  proiits 192 

8.  The  risk  of  loss 19") 

9.  Duty  of  repairing  buildings 190 

10.  Right  of  possession 190 

11.  Delivery  of  possession 197 

12.  Rights  of  vendee  in  possession 197 

13.  Vendee's  assertion  of  hostile  title 198 

14.  Vendee's  possession  not  adverse 201 

15.  Vendee  may  attorn  to  stranger 203 

10.  Judgments  against  vendor 203 

17.  Judgments  against  vendee 20:3 

18.  Vendor's  possession  after  sale 204 

19.  Vendor's  possession  after  conveyance 204 

20.  Destruction  of  property  —  Proceeds  of  insurance 205 

21.  Effect  upon  insurance  of  proviso  against  sales 207 

22.  Condemnation  proceedings 208 

23.  Mechanics'  liens 208 

ClIAPTEIi    VII. 

AGENTS  AND   BROKERS. 

§  1.  General  principles 210 

2.  Who  may  act  as  agent 211 

3.  Continued  —  Trustee  as  agent 212 

4.  Appointment  and  authority '-.'12 

5.  Proof  of  authoritv 214 


Xll  TABLE    OF   CONTENTS. 

PAGE. 

^  G.  Authority  resting  in  parol 215 

7.  Authority  in  writing 216 

8.  Telegram  as  authority 216 

9.  General  and  special  agents 216 

10.  Implied  powers 218 

11.  Agent  must  pursue  his  authority 218 

12.  Agent's  liabiHty  for  breach  of  instructions 219 

13.  For  misconduct 220 

14.  Not  liable  for  errors  of  judgment 220 

15.  Ratification 220 

16.  Agent's  signature 223 

17.  Revocation  of  authority 224 

18.  Agency  coupled  with  interest    225 

19.  Agent's  authority  terminates  with  principal's  death 226 

20.  Undisclosed  principal 226 

21.  When  agent  becomes  personally  liable 229 

23.  When  principal  chargeable  witii  agent's  acts 230 

23.  Fraud  of  agent 231 

24.  Notice  to  agent  binds  principal 232 

25.  Agent  dealing  for  his  own  benefit 234 

26.  The  right  to  commissions 237 

27.  Continued  —  Where  more  than  one  broker  is  employed 241 

28.  Continued  —  Sale  by  owner  without  broker's  interference 242 

29.  Continued  —  Failure  to  close  within  time  stipulated 243 

30.  Continued  —  Sale  by  unlicensed  broker 244 

31.  Continued  —  Agent  as  iDurchaser 245 

32.  Double  agency  246 

33.  The  measure  of  compensation 248 

34.  Sub-agents 249 

CHAPTER  VIII. 

SALES  BY  AUCTION. 

§  1.  Generally 250 

2.  The  sale 250 

3.  Sale  "  without  reserve  " 251 

4.  Sale  by  plat 251 

5.  Auctioneer's  relation  to  the  parties 252 

6.  Auctioneer  cannot  delegate  authority 253 

7.  Withdrawing  bid 253 

8.  Refusing  bid 253 

9.  Puffers  and  by-bidders 254 

10.  Vendor  as  bidder 256 

11.  Combinations  among  bidders 256 

12.  Auctioneer's  memorandum 258 

13.  Auctioneer's  receipt  as  memorandum 260 

14.  The  deposit  261 

15.  Resale 262 


TABLE    OF    CONTENTS.  XI 11 

PAirr  ii. 

INCIDENTS  OF  THE  CONTRACT. 
ClIAPTKIi  IX. 

INVESTIGATING  THE  TITLE. 

PAOE. 

§  1.     General  principles 26.3 

2.  Caveat  emptor 265 

3.  Doctrine  of  notice 205 

4.  Constructive  notice 207 

5.  Wlien  purchaser  is  chargeable  with  notice 209 

6.  What  notice  sufficient 270 

7.  What  will  put  a  party  on  inquiry 273 

8.  Notice  from  registration 274 

9.  Recitals  in  deeds 275 

10.  In(]uiries  in  pais 276 

11.  Notice  of  unrecorded  instruments 276 

12.  Notice  of  parol  agreements.    276 

13.  Notice  of  fraud 277 

14.  Possession  as  an  evidence  of  title 277 

15.  Continued  —  Possession  of  prior  vendors 280 

16.  Liens  and  incumbrances 281 

17.  Mortgages .' 281 

18.  Judgment  liens 283 

19.  Decrees 283 

20.  Mechanics'  liens 283 

21.  Vendors'  liens 284 

22.  Real  estate  charged  with  legacies 285 

23.  Easements  and  servitudes 285 

24.  Pending  litigation 286 

25.  Partnership  property 288 

26.  Notice  to  agent 288 

27.  Joint  purchasers 288 

28.  Rebutting  presumption  of  notice 289 

CHAPTER  X. 

THE  ABSTRACT. 

§  1,     General  principles 200 

''  2.     Duty  of  furnishing  abstract 291 

3.  When  the  abstract  is  made  a  condition 292 

4.  Right  to  time  for  examining  title 293 

5.  Good  and  sufficient  abstract 293 

6.  "  Originals  "  and  copies 295 

7.  What  the  abstract  should  show 296 

8.  Root  of  title '. 298 

9.  Perusing  the  abstract 299 


XIV  TABLE    OF   CONTENTS. 

CHAPTER  XL 

OBJECTIONS  TO  TITLE. 

PAGE. 

§  1.     Generally  considered 301 

2.  A  marketable  title 30:^ 

3.  '•  Satisfactory  "  title 305 

4.  Claims  of  title 308 

5.  Title  of  record 309 

6.  Title  by  adverse  possession  and  limitation 310 

7.  Ancestral  titles 311 

8.  Spurious  deeds 312 

9.  Hazard  of  litigation 312 

10.  Pending  litigation 314 

11.  Unsatisfied  judgments 314 

12.  Outstanding  incumbrances 315 

18.     Continued  —  Unsatisfied  mortgage 317 

14.  Unpaid  taxes 318 

15.  Unreleased  dower  rights 318 

16.  Dowress'  death 319 

17.  Title  subject  to  defeasance 320 

18.  Trusts  and  other  equities 320 

19.  Equitable  estates  —  Legal  titles  outstanding  in  trustees 321 

20.  Violation  of  fiduciary  trusts 321 

21.  Party-walls 322 

22.  Unopened  streets 324 

23.  Clouds  upon  title 324 

24.  Purchase  with  notice  of  defects 325 

25.  Variance  and  discrepancy 326 

26.  Stipulation  for  failure  of  title 327 

27.  Agreement  to  furnish  abstract,  when  an  undertaking  in  re- 

spect to  title 327 

28.  Immaterial  defects 328 

29.  Waiver  of  objections  to  title 329 

30.  Effect  of  delay  in  making  objections 380 

31.  Defects  in  the  subject-matter 331 

PART   III. 

THE  CONVEYANCE. 

CHAPTER  XII. 

THE  MEDIUM  OF  TRANSFER. 

§  1.     Deeds  —  Defined  and  distinguished 333 

2.     Forms  of  conveyance 334 

S.     Deeds  of  bargain  and  sale 335 

4.  Warranty  deeds 336 

5.  Quitclaim  deeds 337 


TABLE    OF   CONTENTS.  XV 

PAOE. 

§  6.  RelonfO 338 

7.  Surrender 33'J 

8.  Assignment 340 

9.  Defeasance 340 

1 0.  Covenant  to  stand  seized 340 

11.  Imperfect  deed  —  Operation  and  effect 34i 

12/  Time  to  jueparo  deed  —  Demand  for  same 3-42 

13.  Vendee's  riglit  to  inspect  deed 34IJ 

14.  Vendor  not  required  to  take  deed  from  third  party 344 

15.  When  contract  has  been  assigned 34i> 

16.  Objections  to  deed 343 

17.  Duty  of  preparing  deed 347 

18.  What  conveyance  is  sufficient 347 

CHAPTER  XIIL 

CONSTRUCTION  OF  DEEDS. 

§  1.  General  rules 350 

2.  Construction  in  favor  of  grantee 352 

3.  Ambiguities  and  inconsistencies 352 

4.  The  premises 353 

5.  Recitals 354 

6.  The  parties 355 

7.  Presumption  as  to  grantee  —  Persons  of  same  name 357 

8.  Consideration 358 

9.  The  habendum 359 

10.  Testamentary  writings 360 

11.  Deed  construed  as  a  mortgage 362 

12.  Relation 364 

13.  Lost  deeds 364 

CHAPTER  XIY. 

THE  LAND  CONVEYED. 

§  1.  General  principles 366 

2.  Ambiguous  descriptions 368 

3.  Inconsistent  descriptions 370 

4.  General  and  special  description 37 1 

5.  Specific  parts 374 

6.  Evidence  aliunde 37(5 

7.  Construction  by  the  parties 377 

8.  Reference  to  plat 377 

9.  Survey  governs  plat 377 

10.  Identification  of  boundary  lines 378 

11.  Marked  lines 380 

13.  Boundary  by  "  parallel  lines  " 380 

13.  Estoppel  in  pais 381 

b 


XVI  TABLE    OF   CONTENTS. 

PAGE. 

§  14.     Statements  of  quantity oS2 

15.  Streets  and  liighways 382 

16.  Continued  —  Where  grantor  is  without  title 384 

17.  EtTect  of  grant  bounded  on  highway 38J) 

18.  Exception  on  liighway 386 

19.  Streams  and  water-ways 386 

20.  Lakes  and  ponds 388 

21.  Continued  —  Artificial  waters 390 

22.  High-water  mark 390 

23.  Tidal  waters 391 

24.  Exception  from  riparian  grant 391 

25.  Mines  and  minerals 393 

26.  Operation  of  erroneous  deeds 393 

CHAPTER  XY. 

THE  ESTATE  CONVEYED. 

§  1.     Generally 395 

2.  Rule  of  construction 396 

3.  Legal  and  equitable  estates 396 

4.  Words  of  inheritance  and  limitation 397 

5.  The  rule  in  Shelley's  case 399 

6.  Effect  of  absolute  conveyance 402 

7.  Eelease  and  quitclaim 40-> 

8.  The  fee 404 

9.  Future  estates 405 

10.  Perpetuities 407 

11.  Creation  of  life  estate 408 

12.  Life  tenant  cannot  defeat  the  estate  of  the  remainder-man. . . .  409 

18.     Homesteads 410 

14.     Incidents  to  the  grant  as  connected  with  the  use  intended 411 

CHAPTER  XVI. 

THE  COVENANTS. 

§  1.     General  observations 413 

2.  Creation  of  covenants 414 

3.  Construction 415 

4.  Inuring  of  title 415 

5.  What  covenants  a  purchaser  lias  a  right  to  expect 416 

6.  Contract  for  conveyance  with  "  usual  covenants  " 418 

7.  Contract  to  convey  with  warranty  419 

8.  Covenants  limited  to  estate  actually  conveyed 421 

9.  Covenants  running  with  the  land 421 

10.  Effect  and  extent  of  restrictions 423 

1 1.  Conveyances  by  attoiney 424 

12.  Covenant  of  seizin 425 


TABLE  OF  CONTENTS.  XV 1 1 

PAOK. 

5  13.  Covenant  for  quiet  enjoyment 426 

14.  Covenant  against  incunibiancea 4'J6 

1~}.  Furtlier  assurance 427 

16.  Covenant  of  non-claim 428 

17.  Covenant  of  warrant}' 429 

18.  Continued  —  Extinguishment  of  the  covenant 42'J 

19.  Cancellation  of  corresponding  covenants 429 

20.  Implied  covenants 430 

21.  Statutory  deeds 431 

22.  Where  wife  refuses  to  join  433 

23.  Value  of  covenants 433 

24.  Defective  covenants  —  Operation  and  effect 434 

25.  Quitclaims 438 

CHAPTER  XVII. 

CONDITIONS,  LIMITATIONS  AND  RESTRICTIONS. 

§  1.  General  principles 439 

2.  Conditions 441 

3.  Continued  —  Classification 443 

4.  Operation  and  effect 44.5 

5.  Construction 44-5 

6.  Continued  —  Conditions  in  avoidance 440 

7.  Continued  —  When  construed  as  covenants 440 

8.  Creation  of  conditions 448 

9.  Revesting  of  title 4.50 

10.  Who  may  take  advantage  of  condition  broken 451 

11.  Who  may  perform 451 

12.  Prevention  of  performance 451 

13.  Time  of  performance 453 

14.  Conditions  in  restraint  of  alienation 453 

1.5.  Continued  —  With  respect  to  time 455 

10.  Continued  —  In  connection  with  prescribed  and  prohibited  uses  455 

17.  Continued  —  Intoxicants 456 

18.  Conditional   limitations 457 

19.  Restrictive  stipulations , 457 

20.  Restrictions  on  use 45  ^ 

21.  Continued  —  Building  restrictions 459 

22.  Prohibited  employments 4G1 

23.  Enforcement  of  restrictions 4G3 

24.  Conveyances  for  support 403 

25.  Conveyance  for  specific  use • .\.  4C5 

20.  Resume 400 

CHAPTER  XVIir. 

RESERVATIONS  AND  EXCEPTIONS. 

§  1.  Definatory. -1^1 

2.  Creation  vi  reservation ' '  ■• 


XV 111  TABLE   OF   CONTENTS. 

PAGE. 

§  3.  Constrnction 473 

4.  Certainty  an  essential 473 

5.  Must  be  ;?rantor  474 

6.  Right  of  way 475 

7.  Right  of  flowage  —  Water  privilege 476 

8.  Light  and  air 477 

9.  Use  and  occupancy 477 

10.  Reserved  rights  in  the  soil 478 

11.  Standing  timber 479 

12.  Reserved  rights  lost  by  disuse 480 

CHAPTEE  XIX. 

EXECUTION. 

Art.  I.    Generally  Considered. 

§  1.  Definition 482 

2.  Execution  by  corporation 482 

3.  Variations  and  discrepancies 484 

4.  Execution  in  blank 485 

5.  Attestiu    witnesses 486 

Art.  II.    Signing. 

§  1.  General  principles 489 

2.  Method  of  signing 490 

3.  Signature  by  mark 491 

Art.  III.    Sealing. 

§  1.  General  views  —  Definition 493 

2.  Necessity  of  a  seal 494 

3.  Method  of  sealing  495 

4.  Omission  to  seal 497 

Art.  IV.    Delivery. 

§  1.  General  principles 499 

2.  The  theory  of  delivery 501 

3.  Intention  the  vital  principle  of  delivery 502 

4.  Presumption  of  time  of  delivery 503 

5.  Presumption  from  recording 504 

6.  Presumption  from  possession  of  instrument 506 

7.  Presumptions  in  case  of  voluntary  deeds 507 

8.  No  presumption  from  execution 507 

9.  Sufficiency  of  proof  of  delivery 508 

10.  Delivery  to  third  person 509 

11.  Delivery  to  take  effect  after  death  of  grantor 510 

12.  Deed  retained  by  gi-antor 512 

13.  When  grantor  will  be  estopped 513 

14.  Revocation  and  redelivery 513 

15.  Delivery  in  escrow 515 

16.  Acceptance 518 


TABLE   OF   CONTENTS.  XIX 

CHAPTER  XX. 

ACKNOWLEDGMENT. 

PAOE. 

§  1.     General  principles 519 

2.  Who  may  take 520 

3.  Fornn 523 

4.  Venue 523 

5.  Date 524 

6.  Party  acknowledging  niubt  be  sufficiently  identified 524 

7.  Fact  of  acknowledgment  must  be  stated 526 

8.  Party  acknowledging  nmst  bo  under  purport  of  act 527 

9.  Acknowledgment  by  corporation 527 

10.  Conveyances  by  married  women 527 

11.  x\uthentication  by  officer 530 

12.  Clerical  errors  —  Surplusage  —  Omissions 530 

13.  Proof  of  official  character 531 

CHAPTER  XXI. 
REGISTRATION. 

§  1.     General  principles 533 

2.  Effect  of  registration 534 

3.  What  instruments  must  be  recorded 534 

4.  Equities  and  equitable  interests 535 

5.  Forged  instruments 536 

6.  Government  lands 536 

7.  Prerequisites  of  registration 536 

8.  Registration  as  affected  by  defective  execution 537 

9.  Imperfect  description 538 

10.  Failure  to  record  by  recording  officer 539 

11.  Effect  of  erroneous  registration 539 

12.  Instruments  recorded  in  wrong  book 541 

13.  Index  entries 541 

14.  Failure  to  index 541 

15.  Deed  witiidrawn  after  filing 542 

16.  Priority 542 

17.  Destruction  of  record 543 

18.  Unrecorded  instruments    544 

19.  Continued  —  As  between  the  parties 545 


XX  TABLE   OF   CONTENTS. 

PART   lY. 

INCIDENTS  OF  THE  CONVEYANCE. 

CHAPTER  XXII. 

EASEMENTS  AND  APPURTENANCES. 

PAGE. 

§  1.     Easements 547 

2.  Appurtenances 548 

3.  What  passes  as  appurtenant 549 

4.  Theory  of  appurtenant  easements 55U 

5.  Profits  d  prendre 552 

6.  Incidents  to  a  grant  as  connected  with  intended  uses. . .   553 

7.  Restrictions  operating  as  easements 554 

8.  Servitudes  by  reservation 554 

9.  Grants  in  fee  construed  as  easements 555 

10.  Easement  distinguished  from  natural  right 555 

1 1 .  Rights  of  way 556 

12.  Ways  by  necessity 558 

13.  City  streets 559 

14.  Unopened  streets  and  roadways 559 

15.  Right  of  flowage 561 

16.  Light  andair 562 

17.  Extinguishment 563 

CHAPTER  XXIII. 

USES  AND  TRUSTS. 

§  1.     General  principles 565 

2.  What  trusts  allowed 567 

3.  The  subject-matter 567 

4.  The  parties 567 

5.  Creation  of  trust  s 568 

6.  Words  of  limitation 569 

6a.  Declaration  of  trust 570 

7.  Execution  of  trust  by  trustee 571 

8.  Execution  of  trust  by  statute 572 

9.  Trust  of  rents  and  profits 573 

10.  Duties  and  obligations  of  trustees 573 

11.  Disposition  of  trust  property 575 

12.  Purchaser  of  trust  estate 576 

13.  When  j)urchaser  must  see  to  application  of  purchase  money. . .  576 

14.  Trustee's  deed  as  color  of  title 577 

15.  Resulting  trusts 578 

16.  Conveyance  taken  by  one  where  consideration  is  paid  by  an- 

other   580 

17.  Continued  —  Payment  must  be  of  the  whole  or  some  aliquot 

part  of  tlie  consideration 581 


TABLE   OF   CONTENTS.  X:C. 

PACK. 

i  18.  Purchase  by  fiduciaries 582 

19.  Joint  purchase  in  the  name  of  one 582 

20.  Fraudulent  grantee,  wlien  a  trustee 5'?3 

21.  Purchase  in  name  of  wife  or  chihhen 58^^ 

22.  Voluntary  conveyance 584 

23.  Loans  —  Title  taken  as  security 585 

24.  Parol  evidence  to  show  resulting  trust 685 

25.  Parol  proof  in  rebuttal 587 

26.  Removal  or  substitution  of  trustees 5S7 

27.  Reservation  of  verbal  and  secret  trusts 587 

CHAPTER  XXIY. 

POWERS. 

g  1.  General  rules  and  principles 589 

2.  Powers  given  to  several 590 

3.  Powers  of  attorney 591 

4.  By  several  persons  591 

5.  Construction 591 

6.  The  subject-matter 593 

7.  Defective  execution  of  power 593 

8.  Registration  of  power 594 

9.  Power  of  infant 594 

10.  Power  of  lunatic 594 

11.  By  husband  and  wife 595 

12.  Revocation 595 

CHAPTER  XXV. 

FRAUDULENT  CONVEYANCES. 

§  1.  General  principles 599 

2.  Fraud  —  Of  what  consisting 601 

3.  Conveyance  on  secret  trust 603 

4.  Subsecjuent  validation  of  fraudulent  grants  004 

5.  When  deed  permitted  to  stand  as  security  for  sum  paid G05 

G.  Purchaser  without  notice 606 

7.  Purchaser  with  notice  from  one  who  purchased  without  notice  606 

8.  Purchaser  without  notice  from  one  who  purchased  with  notice  608 

9.  Must  have  purchased  in  good  faith 008 

10.  Must  have  paid  value 010 

11.  W^hat  constitutes  value 611 

12.  Purchaser  with  notice 013 

13.  Purchaser  by  quitclaim 615 

14.  Purchaser  Irom  grantee  by  quitclaim .  616 

15.  A  debtor  may  prefer  one  creditor 617 

16.  When  declarations  of  vendor  are  evidence  against  the  vendee  .  618 

17.  Exempt  property  —  Conveyance  of  the  homestead 621 


XXll  TABLE    OF    CONTENTS. 

PAGE, 

g  18,     Heirs  of  fraudulent  grantee 621 

19.  Voluntary  conveyances 631 

20.  Operation  and  ellVct  —  As  between  the  parties 623 

21.  Continued  —  As  between  the  parties  and  third  persons C24 

22.  Conveyances  from  husband  to  wife 626 

23.  Continued  —  Purchaser  from  wife 628 

24.  Conveyance  to  wife  upon  consideration 628 

25.  Conveyance  to  wife  —  Consideration  paid  by  husband 631 

20.     Continued  —  Purchaser  from  wife 632 

27.  Expenditures  and  improvements  upon  wife's  land  by  husband.  633 

28.  Property  paid  for  by  wife's  earnings 634 

29.  From  parent  to  child 636 

30.  Parol  gifts 637 

31.  Deed  made  to  perfect  title  of  parol  gift 639 

32.  Ante-nuptial  settlement 639 

88.  Ante-nuptial  conveyances  in  fraud  of  intended  consort  —  By 

wife 640 

34.  Continued  —  By  the  husband 642 

35.  Pleading  and  proof 644 

36.  Effect  of  adjudication  of  fraud 646 

CHAPTER  XXVI. 

INCUMBRANCES. 

g  1.     General  observations 647 

2.  Duty  of  purchaser  of  mortgaged  property 650 

3.  Conveyance  subject  to  mortgage 654 

4.  As  between  vendor  and  vendee 656 

5.  Assumption  of  mortgage  by  purchaser 658 

6.  Contract  of  assumption 660 

7.  Proof  of  assumption  —  Acceptance  of  deed  binds  grantee 662 

8.  Assumption  by  parol 663 

9.  Assumption  of  entire  debt  by  purchaser  of  part  of  mortgaged 

property 664 

10.  Effect  of  assumption  where  grantor  is  not  liable 665 

11.  Effect  of  extension  to  purchaser  upon  mortgagor's  liability 667 

12.  Vendor's  right  to  compel  payment  of  mortgage 669 

13.  Unauthorized  introduction  of  assumption  clause 670 

14.  Stipulation  inserted  through  mistake 670 

15.  Purchaser  subject  to  mortgage  cannot  assert  paramount  title. .  670 

16.  Purchaser  cannot  deny  validity  of  mortgage 670 

17.  Continued  —  When  purchaser  may  set  up  defenses 673 

18.  Continued  —  Removal    of    purchaser's    disability    by   acts    of 

grantor 674 

19.  Stipulation  making  whole  debt  due  on  default  of  partial  pay- 

ment     676 

20.  Effect  of  release  of  portion  of  mortgaged  land 676 

21.  Vendor's  right  of  subrogation 677 


TABLE   OF   CONTENTS.  XXlll 

PAGE. 

22.  Presumption  of  payment 677 

23.  Coiitinuod  —  Admission  of  lien  and  promise  to  discliarRO  same.  678 

24.  Order  of  sale  of  mortgaged  property 67H 

25.  Contribution  among  purchasers 681 

26.  Purchaser's  right  to  redeem 683 

27.  Continued  —  Costs  on  redemption 683 

28.  Mortgage  estate  converted  into  money C81 

29.  Mortgages  given  prior  to  investiture  of  title 684 

30.  Estoppel  of  mortgagee 6>r.j 

31.  ElToct  of  unrecorded  mortgage 685 

32.  Lands  held  under  contract 687 

33.  Merger 688 

34.  Deed  with  contract  to  reconvey 689 

85.  Absolute  conveyance,  when  treated  as  a  mortgage 690 

36.  Property  subject  to  judgment 692 

CHAPTER  XXVII. 

VENDOR'S  LIEN. 

Art.  I.    By  Implication. 
a.  Where  the  Vendor  Parts  uith  Title. 

5  1.  General  principles 693 

2.  Derivation  of  t  he  lien 094 

3.  Nature  and  operation 695 

4.  Effect  and  extent  of  the  lien 090 

5.  Extends  to  subsequent  purchasers  with  notice 097 

6.  Does  not  affect  purchasers  without  notice 699 

7.  What  constitutes  notice 699 

8.  Is  not  impaired  by  death 700 

9.  Effect  as  against  creditors 701 

10.  When  enforced  in  favor  of  ono  not  the  grantor 702 

11.  Title  made  in  name  of  third  person 704 

12.  Recital  of  payment  in  deed 705 

13.  Money  exjiended  by  vendor  for  improvement'* 705 

14.  Only  lies  for  a  debt 706 

15.  Entire  and  severable  contracts 70S 

16.  In  sales  induced  by  fraud 708 

17.  Improvements  by  vendee 710 

18.  Minerals 710 

19.  Assignment  of  the  lien 710 

20.  Waiver  of  lien 712 

21.  What  amounts  to  waiver  or  abandonment 713 

22.  Vendee  cannot  deny  vendor's  title 717 

23.  Proceedings  for  enforcement 717 

24.  Burden  of  proof 718 

25.  Purchaser's  defenses 71S 


XXIV  TACLK    OF   CONTENTS. 

PAGE. 

§26.     Rents  and  profits 719 

27.  Concurrent  remedies 719 

28.  As  affected  by  the  statute  of  limitations 720 

29.  Vendor's  lien  and  meclianic's  lien  721 

30.  Vendee's  lien 721 

b.   Where  the  Vendor  Retains  Title. 

g  1.     The  theory 722 

2.  Nature  of  the  lien 723 

3.  Limitation  of  right  to  foreclose 724 

4.  Implied  waiver , 725 

Art.  II.    By  Contract. 

§  1.     General  principles 727 

2.  By  express  reservation 728 

3.  Formality  of  expression 729 

4.  Recital  of  the  fact  of  unpaid  purchase  money 730 

5.  Assuming  incumbrance  as  part  of  the  purchase  money 731 

6.  Vendor's  lien  on  crops 781 

7.  Reservation  by  separate  instrument  —  Equitable  mortgages. . . .  733 

8.  Not  affected  by  subsequent  mortgage 734 

9.  Not  affected  by  independent  security 734 

10.  Not  affected  by  action  at  law 734 

1 1.  As  affected  by  limitation  —  Presumption  of  payment 735 

12.  Assignment  and  transfer 736 

13.  Subrogation  of  co-purchaser 736 

PABT  V. 

REMEDIES  AND  PROCEEDINGS. 

CHAPTER  XXYIII. 

SPECIFIC  PERFORMANCE. 
Art.  I.    Of  Contracts  in  Writing. 

S  1.     General  principles 738 

2.  What  contracts  may  be  enforced 740 

3.  Can  only  be  of  ascertained  and  existing  contract 742 

4.  Tlie  parties; 743 

5.  Agents 744 

0.     Subsequent  purchasers 744 

7.  When  minors  are  interested 745 

8.  Jurisdiction  —  Land  in  another  state 745 

9.  As  dependent  on  conditions 747 

10.  Mutuality  —  Unilateral  contracts 747 

11.  Indeliniteness  —  Uncertainty ...  748 

12.  Fraud 751 


TABLE   OF   CONTENTS.  XXV 

PAOR. 

5  13.  Contract  induced  by  misrepresentation V-W 

14.  Concealment  of  material  facts 753 

15.  Ilardbliip  —  Oppression 754 

16.  Misappreliension  —  Mistake 75(3 

17.  Laches  and  delay 757 

18.  Defective  title 700 

19.  Deficient  quantity    703 

20.  When  tiie  vendor  cannot  produce  title  contracted  for 703 

21.  Inadequate  consideration 704 

22.  Inability  to  perform 700 

23.  Where  wife  refuses  to  join  in  conveyance. 7li8 

24.  Incapacity  of  parties 770 

25.  Gifts  and  donations 771 

20.  Tender  of  performance  —  By  vendee 773 

27.  Continued  —  By  vendor 775 

28.  Where  contract  has  been  rescinded 770 

29.  Verbal  abandonment  of  contract 770 

30.  Though  performance  be  refused  other  relief  maj^  be  granted. . .  777 

31.  Auxiliary  remedies  —  Ne  exeat 779 

32.  Submissions  and  awards 780 

Art.  II.    Of  Parol  Contracts. 

§  1.  General  principles 781 

2.  The  contract 783 

3.  Payment  of  the  purchase  money 784 

4.  Possession 784 

5.  Expenditures  and  improvements 785 

0.  Verbal  agreement  to  procure  title  and  convey 787 

7.  Pai'ol  promise  to  purchase  for  anotlier 787 

8.  Compensation  for  improvements 788 

9.  Parol  gifts 789 

10.  Against  vendee 790 

11.  Marriage  —  Ante-nuptial  agreements 791 

12.  Parol  variation  of  written  agreements 793 

CHAPTER  XXIX. 

REFORMATION. 

§  1.  General  principles 793 

2.  Ofdeeds 794 

3.  Of  contracts 795 

4.  Of  voluntary  conveyances 796 

5.  Deeds  of  married  women 790 

6.  Defective  execution 790 

7.  Clerical  errors  and  omissions 797 

8.  Parties 798 

9.  Subsequent  purchasers 799 

10.  Judgment  creditors 799 


XXVI  TABLE    OF   CONTENTS. 

PAGE. 

8  11.  For  mutual  mistake 800 

12.  Continued —  For  mistake  of  one  party  only 801 

13.  Mistake  occasioned  by  fraud 802 

14.  Mistake  resulting  from  negligence 803 

15.  Mistake  of  the  draughtsman 804 

16.  Mistakes  of  law 805 

17.  Mistakes  as  to  estate 808 

1 8.  Mistakes  as  to  identity  of  property 809 

19.  Description  with  definite  quantity  810 

'20.  Description  without  specification  of  quautitj' 811 

21.  Description  with  estimated  quantity 811 

22.  False  enumeration  cf  quantity 811 

£3.  Mistake  induced  by  misrepresentation 812 

24.  Mistake  of  law  induced  by  misrepresentation 812 

25.  Grantee  in  fault 812 

26.  As  aflfected  by  delay 813 

27.  As  affected  by  the  statute  of  frauds 814 

28.  Reformation  will  not  lie  after  an  action  at  law 817 

CHAPTER  XXX. 

FORFEITURE. 

j^  1.  General  principles  —  Definition 818 

2.  Construction 819 

3.  Right  of  forfeiture  a  privilege  of  the  vendor 820 

4.  Continued  —  When  contract  contains  mutual  covenants 821 

5.  Vendor  must  have  ability  to  perform 822 

0.  Fraud  of  vendor 822 

7.  How  made 823 

8.  When  vendor  must  first  offer  to  perform 824 

9.  Forfeiture  and  resale  —  Riglits  of  second  purchaser 825 

10.  Lapse  of  time  does  not  work  forfeiture 825 

11.  Waiver 826 

12.  Effect  of  indulgence 828 

13.  Acquiescence  by  the  vendee 829 

14.  Relief  in  equity 830 

15.  Annexations  by  purchaser 831 

16.  Forfeiture  of  option 833 

CHAPTER  XXXI. 

RESCISSION. 

g  1.  General  principles 833 

2.  Mutual  agreement 834 

3.  Novation 835 

4.  Non-compliance 835 

5.  Estoppel  by  acquiescence    S36 


TABI.K    OK    CONTENTS.  XXVI 1 

PAGE. 

§  6.     Mistake 830 

7.  Deliciency  in  quantity 838 

8.  Continuf'd  —  Sales  in  gross S-11 

9.  Cuntiniiod  —  Sale  of  specific  quantity 812 

10.  Defective  title 843 

11.  Ina(Je<iuacy  of  price 844 

12.  Continued  —  Sales  of  tlie  equity  of  redemption 817 

13.  Laches  and  delay 847 

14.  Abandonment  —  Failure  to  j)crrorni 85iJ 

15.  Destruction  of  the  subject-matter S'A) 

10.     Fraud 851 

17.  Concealment 854 

18.  Misrepresentation 850 

19.  Fraudulent  or  improper  acts  of  agent 802 

20.  Recriminatory  fraud  as  a  defense 8C3 

21.  Duress 804 

22.  Undue  influence SCO 

23.  Unforeseen  events 8C8 

24.  Gifts  and  donations 809 

25.  Mental  weakness 870 

20.     Infancy 873 

27.  Illegality 877 

28.  Rescission  after  conveyance  with  covenants 878 

29.  "When  rescission  must  be  entire 878 

oO.     When  rescission  may  be  partial 879 

31.     As  afTected  by  limitation 879 

82.     Duty  of  rescinding  party 880 

33.  Necessity  of  notice 883 

34.  Rights  of  the  parties  on  rescission 884 

35.  Of  parol  contracts 880 

30.  Renewal  after  rescission 887 


CHAPTER  XXXII. 

USE  AND  OCCUPATION. 

g  1 .  General  principles 888 

2.  Contract  to  convey  docs  not  confer  right  to  possession 889 

3.  Where  contract  fails  through  fault  of  vendor 890 

4.  Where  contract  fails  through  fault  of  vendee 890 

5.  Occupation  b,v  vendee  after  abandonment  of  contract 893 

0.  Occupation  under  void  contract 89:J 

7.  When  vendee  enters  as  tenant BSlo 

8.  Possession  acquired  by  fraud 893 

9.  Allowance  to  fraudulent  grantee 894 

10.  Compensation  recovered  by  assunij^sit 894 

11.  Compensation  as  for  trespass 895 

12.  Against  the  vendor    895 


XXVlll  TABLE    OF   CONTENTS. 

CIIArXER  XXXIII. 
ACTIONS  FOR  POSSESSION. 

PAGE. 

§  1.     General  principles 897 

2.  By  the  vendor 89!) 

3.  By  the  vendee OOn 

4.  By  third  parties 901 

5.  Notice  to  quit 902 

6.  Peaceful  entry  and  repossession  by  vendor 90 } 

7.  Forcible  detainer 90!$ 

8.  Improvements  by  purchaser 904 

9.  Defenses  to  the  action 90S 

10.     Conclusiveness  of  judgment  in  ejectment. 910 

CHAPTER  XXXIY. 

ACTIONS  FOR  THE  PURCHASE  MONEY. 

Art.  I.    Vendor's  Action  for  Price. 

§  1.     General  principles 911 

2.  As  affected  by  the  statute  of  frauds 913 

3.  Collateral  and  superadded  agreements  with  respect  to  purchase 

money 914 

4.  Where  acts  are  concurrent 915 

5.  Payment  of  money  into  court 915 

Art.  II.    Vendee's  Defenses. 

§  1.     Fraud 917 

2.  Defective  title  —  Executed  contract 919 

3.  Continued  —  Executory  contract 922 

4.  Deficiency  in  quantity 924 

5.  Defective  quality 928 

6.  Personal  disability 929 

7.  Unconscionable  bargains 929 

8.  Agreements  to  forbear 930 

9.  Agreements  to  rescind 931 

10.  Purchaser  may  defend  with  cross-action  pending 932 

11.  Set-off 933 

12.  Assignees  of  the  purchase  money 934 

13.  Where  vendor  repossesses  himself  of  the  land 935 

14.  Relief  by  way  of  injunction 937 

Art.  III.    Vendee's  Action  to  Rf.cover  Back  Price. 

§  1.     When  the  action  lies 941 

2.  Failure  of  consideration  —  Defective  title 941 

3.  Incumbrances 943 

4.  Erroneous  deed 946 

").     Right  to  deduct  for  waste  and  spoliation 947 


TABLE    OF    CONTENTS.  XX IX 

PAGK. 

§  6.     Voluntary  rcBcission 947 

7.  Vendor's  inability  to  iJcrforni 'J-IM 

8.  Vendee's  refusal  to  perform 94'J 

9.  Recovery  of  the  deposit 9"() 

10.     Vendee  under  quitclaim  deed 901 

Art.  IV.    Parol  Contracts. 

§  1.     Actions  by  the  vendor    9'>2 

2.  Actions  by  the  vendee ^'i2 

3.  Failure  of  consideration 9."i:] 

4.  Recovery  of  the  value  of  consideration  —  Work  and  labor 9.")4 

5.  Demand  for  deed 954 

CHAPTER  xxxy. 

ACTIONS  FOR  DAMAGES. 
Art.  I.    On  the  Contract. 

§  1.     General  princii)lps 955 

.  3.     Continued  —  When  right  of  action  accrues  957 

3.  Failure  to  perform  —  Vendor's  refusal 959 

4.  Continued  —  Vendee's  refusal 961 

5.  Failure  to  perform  collateral  agreements 9G3 

6.  Illegality  precludes  recovery 965 

7.  Mutuality C65 

8.  Deceit  or  fraud  —  False  representation 9(i5 

9.  Continued  —  Fraudulent  concealment 908 

10.  False  statements  without  fraud 968 

11.  False  representations  as  to  value 969 

12.  False  representations  as  to  appurtenances 972 

13.  False  representations  as  to  the  condition  of  the  property 973 

14.  False  representations  as  to  the  quantity 974 

15.  Failure  to  assign  insurance  policy 974 

10.     Waste 975 

17.  Injuries  to  lands 976 

18.  Deprivation  of  possession 976 

19.  As  affected  by  limitation 977 

20.  Penalties  and  liquidated  damages 978 

21.  Continued  —  Non-performance  of  stipulation 981 

22.  Damages  by  way  of  recoupment 981 

23.  Compensatory  damages  in  equity 98:3 

24.  Damages  for  breach  of  parol  agreement 984 

Art.  II.     On  the  Covenants. 

^  1.     General  principles 0^0 

2.  Seizin 987 

3.  Continued  —  Total  breach OHO 

4.  Continued  —  Partial  breach f 92 


XXX  TABLE   OF   CONTENTS. 

PAGE. 
§  5.     Riglit  to  convey 992 

6.  Incumbrances 992 

7.  Continued  —  Existing  easements 998 

8.  Continued  —  Unpaid  taxes 1000 

9.  Dower  rights 1001 

10.  Quiet  enjoyment 1002 

1 1 .  General  warranty  1003 

12.  Continued  —  Measure  of  damages 1007 

I'd.     Attorneys'  fees 1010 

14.  Condemnation  of  property  sold 1011 

15.  Further  assurance 1012 

16.  Division  of  covenants ; ....  1012 

17.  Set-off  by  covenantor •  1013 

18.  Covenants  of  married  women 1014 

19.  Parol  evidence  of  warranty 1015 


THE  -LAW 


OF 


VENDOR  AND  PURCHASER. 


PAET  I. 

THE  CONTRACT  OF  SALR 


CHAPTER  I. 


THE  SUBJECT-MATTER. 


Art. 

I. 

The  Property. 

Art. 

II. 

The  Estate. 

Art. 

HI, 

The  Title. 

Akt.  I. 

The  Pkoperty. 

§1. 

Introductory. 

§12. 

Mortgaged  chattels  affixed  to 

2. 

Eeal  property  considered 

, 

realty. 

3. 

Land, 

13. 

Chattels  left  upon  land. 

4. 

Minerals, 

14, 

Land  under  water. 

5. 

Growing  crops. 

15, 

Water. 

6. 

Trees  and  herbage. 

16, 

Ice. 

7. 

Manure. 

17. 

Church  pews. 

8. 

Appurtenances. 

18. 

Property  in  adverse  seizin  of 

9. 

Houses  and  buildings. 

third  person. 

10. 

Fixtures. 

19. 

Franchises. 

11. 

Continued  —  Rule  for  determ 

i- 

nation. 

§  1.  Introductory.  Land,  in  the  United  States,  is  justh-- 
regarded  as  an  article  of  commerce.  It  is  said  to  represent 
the  basis  of  all  values  and  to  form  the  foundation  of  all  secu- 
rities. Capital  seeks  it  as  an  investment.  Purchasers  acquire 
it  as  ivell  for  the  purposes  of  speculation  and  trade  as  for 
1 


CONTRACT   OF   SALE. 


permanent  improvement  or  domicile.  The  removal  of  all 
restrictions  to  alienation  makes  transfer  easy  and  safe,  while 
the  vast  extent  of  country  that  is  open  to  settlement  and  sale. 
the  marvelous  growth  of  great  cities  and  the  comparative 
cheapness  of  land  in  all  parts  of  the  country,  have  all  con- 
spired to  build  up  a  great  traffic  in  real  property,  and,  as  a  cor- 
ollary, an  extensive  code  of  laws  for  its  regulation. 

In  considering  the  subject  of  real  property  from  the  stand- 
point of  a  vendor  or  vendee,  it  will  be  found  that,  while  the 
land  is  what  is  used  and  enjoyed,  it  is  the  interest  in  the  land 
or  the  extent  of  the  enjoyment  that  actually  forms  the  basis 
of  a  sale.  The  former  may  therefore  be  aptly  described  as  the 
jiropertij;  the  latter  is  covered  by  the  comprehensive  term 
estate,  while  the  right  or  authority  for  the  exercise  of  property 
rights  is  embodied  in  the  terra  title.  In  the  succeeding  para- 
graphs of  this  chapter  it  is  proposed  to  briefly  enumerate  and 
discuss  the  various  subdivisions  of  these  three  elementary 
classes,  and  in  the  remaining  chapters  of  the  work  the  inci- 
dents that  attach  to  each  and  the  methods  of  their  acquisition 
and  disposal. 

§  2.  Real  property  consitlered.  Under  the  generic  term 
"  real  property  "  is  included  not  only  land,  but  all  rights  and 
profits  arising  from  or  annexed  to  the  same  that  are  of  a  per- 
manent and  immovable  nature,  usually  classed  as  tenements 
and  hereditaments.  Tenement  is  said  to  be  a  word  of  greater 
extent  than  land,  signifying  everything  that  may  be  holden  by 
a  tenure;  while  hereditament  is  still  more  comprehensive,  in- 
cluding both  lands  and  tenements,  and  in  addition  whatever 
may  be  inherited.^  Land,  in  its  legal  signification,  compre- 
hends the  entire  ground  or  soil  of  the  earth,  together  with  its 
produce  or  increment,  as  vegetation,  waters,  etc.,  and  has  an 
indefinite  extent  upwards  as  well  as  downwards.  It  legally 
includes  all  houses,  buildmgs  and  structures  standing  thereon,^ 
and  all  minerals,  fossils  or  gases  beneath  the  surface." 

For  convenience  of  classification,  real  propert}^  has  further 
been  divided  into  what  is  known  as  corporeal  and  incorporeal ; 

^Sacket    v.    Wheaton,     17    Pick.  2  gudbury  v.  Jones,  8  Cash.  (Mass.) 

(Mass.)    105;    2    Black.    Com.    17;  1  189;  Dooley  v.  Crist,  25111.  551 ;  Green 

Prest.   Est.   12;  Can  field  v.  Ford,  28  v.  Armstrong,  1  Denio  (N.  Y.),  554. 

Barb.  (N.  Y.)  336.  3  Kier  v.  Peterson,  41  Pa.  St.  362 ; 


SUBJKCT-MATTER.  3 

the  former  consisting  wliolly  of  substantial  and  permanent 
subjects,  and  the  hitter  of  rights  and  interests  arising  there- 
from. Incorporeal  property,  in  the  sense  in  which  that  term 
is  used  in  the  English  law/  finds  but  few  examples  in  the 
United  States;  and,  although  the  term  is  in  common  use,  it  is 
confined  to  that  class  of  rights  denominated  easements. 

§  3.  Land.  In  its  popular,  but  at  the  same  time  more  re- 
stricted, signification,  land  is  the  solid  material  of  the  earth, 
Avithout  reference  to  the  character  of  the  ingredients  of  which 
it  is  composed,  whether  soil,  rock,  or  other  substance;  and 
though  for  many  purposes  every  species  of  annexation  or  ap- 
purtenance will  be  considered  under  the  same  head,  yet  when- 
ever a  question  has  arisen  upon  such  annexations  or  appurte- 
nances the  foregoing  definition  has  always  been  adopted  by 
the  courts,  and  has  even  found  expression  in  direct  statutory 
enactment.  In  some  instances  state  legislatures,  Avith  a  laud- 
able but  misdirected  desire  to  simplify  the  law  and  codify  ele- 
mentary" principles,  have  gone  so  far  as  to  declare  that  the 
term  "  land  "  includes  not  only  lands,  tenements  and  heredita- 
ments, but  all  rights  thereto  and  interests  therein ;  but,  as  a  rule, 
these  incidents  are  usually  covered  under  the  term  "  real  prop- 
erty," and  the  word  "  land  "  is  restricted  in  its  signification 
to  the  definition  first  above  given. 

§  4-.  Minerals.  Coal,  metals,  and  minerals  of  every  descrip- 
tion, Avhile  in  place, are  regarded  as  land;  but,  under  a  system 
peculiar  to  the  United  States,  or,  with  greater  strictness,  to 
certain  of  the  states,  mineral  deposits  and  seams  beneath  the 
surface  may  be  sold  and  conveyed  by  deed  entirely  distinct 
from  the  surface  rights.  Such  a  ])rocedure  was  impossible 
under  the  old  English  system  of  conveyancing,  at  least  so  far 
as  unopened  mines  were  concerned,  because  livery  of  seizin 
was  an  inseparable  incident  of  every  conveyance,  and  could 
not  be  had  of  a  separate  interest  in  land  beneath  the  surface. 

Caldwell  v.  Fulton,  31  Pa.  St.  475;  vowsons  and  rents,  whicli  were  held 

Adams  v.  Biif'<;s   Iron  Co.  7  Ciish.  to  be  of  a  real  nature.     Oftices  exer- 

(Mass.)  361;  2  Black.  Com.  18;  Mott  cisable  within  certain  places,  though 

V.   Palmer,  1  N.  Y.   509.     The  legal  not  annexed  to  land,  were  said  to 

maxim  being  '^ciijus  est  solum,  ejus  savor  of  the  realty;  and  dignities  or 

est  usque  ad  civlum."    Broom,  Leg.  titles  of    honor,    having    been  orig- 

Max.  289.  inally   annexed   to   land,    were  also 

1  Under  this  term  was  included  ad-  considered  as  real  property. 


4  CONTRACT    OF    SALE. 

Hence,  notwithstanding  such  interests  were  not,  in  the  proper 
acceptation  of  the  term,  rights  issuing  out  of  the  land,  but  the 
ver}'-  substance  itself,  they  were  usually  regarded  as  incorpo- 
real hereditaments.^  But  registration  having  taken  the  place 
of  the  ancient  livery,  there  is  nothing  incongruous  in  consider- 
ing a  grant  of  the  substratum  a  grant  of  land  as  much  as  a 
conveyance  of  the  surface  itself.^ 

A  right  to  enter  upon  the  lands  of  another  and  raise  miner- 
als at  a  stipulated  price  per  ton,  or  upon  any  other  terms  which 
do  not  comprehend  a  sale  in  gross  or  for  a  round  sum,  stands 
upon  a  different  footing,  and  falls  strictly  within  the  definition 
of  an  incorporeal  hereditament.''  Such  a  privilege  confers  no 
exclusive,  right  and  must  be  exercised  in  common  with  the 
grantor.  It  is  much  in  the  nature  of  a  license,  even  though  it 
be  irrevocable,  and  is  not  equivalent  to  a  sale,*  even  though 
it  is  stipulated  that  the  privilege  shall  be  accorded  to  no  one 
else.^  An  incorporeal  hereditament,  however,  can  only  be 
transferred  by  deed  with  all  the  formalities  required  by  law 
for  the  conveyance  of  a  corporeal  right." 

An  express  grant  of  all  the  minerals  or  mineral  rights  in  a 
tract  of  land  is,  by  necessary  implication,  the  grant  also  of 
the  right  to  work  them,  unless  the  language  of  the  grant  itself 
repels  this  construction.'^  It  also  involves  the  incidental  right 
to  penetrate  the  surface  of  the  soil  for  the  minerals,  and  to  use 
such  means  and  processes  for  the  purpose  of  mining  and  re- 
moving them  as  may  be  reasonably  necessary,  in  the  light  of 
modern  inventions,  and  of  the  improvement  in  the  arts  and 
sciences,  but  without  injury  to  the  support  for  the  surface  or 
superincumbent  soil  in  its  natural  state.^ 

1  The  same  view  has  been  taken  in  bard,  51  Cal.  258 ;  Ryckman  v.  Gillis, 
some  of  the  states.     See  Arnold  v.    57  N.  Y.  68. 

Stevens,  24  Pick.  (Mass.)  109 ;  Thomp-       4  Funk  v.  Haldeman,  53  Pa.  St.  243. 
son  V.  Gregory,  4  Johns.  (N.  Y.)  81.  5  Johnston  Iron  Co.  v.  Cambria  Iron 

2  Caldwell  v.  Fulton,  31  Pa.  St.  475;    Co.  33  Pa.  St.  241. 

Knight  V.  Indiana  Coal  Co.  47  Ind.  6  Thompson  v.    Gregory,  4  Johns. 

110;  Marble  Co.  v.  Ripley,  10  Wail.  (N.  Y.)  81. 

(U.  S. )  363 ;   Adams  v.  Briggs  Iron  ''  This  is  the  result  of  the  familiar 

Co.   7  Cash.    (Mass.)  361;  Riddle  v.  maxim    that,    "when    anything    is 

Driver,  12  Ala.,  590.  granted,  all  the  means  of  obtaining 

3  Johnston  Iron  Co.  v.  Cambria  Iron  it,  and  all  the  fruits  and  effects  of  it, 
Co.  32  Pa.  St.  241;  Carnahan  v.  are  also  granted."  1  Shep.  Touch.  89. 
Brown,  60  Pa.  St.  24 ;  Melton  v.  Lom-  8  Marvm  v.  Mining  Co.  55  N.  Y.  538; 


SLK.TECT-MATTER.  0 

§  5.  Growing  crops.  Althouf^^li  growing  crops  are  ordina- 
rily regarded  as  personal  property,  yet  as  between  vendor  and 
vendee  they  are  held  to  be  real  estate,  and,  unless  reserved, 
pass  to  the  purchaser  of  the  land  as  being  annexed  to  and 
forming  a  part  of  the  freehold.'  AViiere  the  vendor  has  made 
a  sale  of  all  his  right,  title,  interest  and  estate  in  the  land,  it 
is  but  fair  to  su|>pose  that  the  growing  crops  entered  into  the 
view  of  the  purchaser,  and  formed  jjart  of  the  consideration 
for  the  purchase  price  which  he- paid  for  the  land;  and  this 
construction  is  the  one  generally  adopted  by  the  courts.- 

"Whether  the  reservation  must  be  in  writing  is  a  question 
upon  which  there  seems  to  be  some  dispute;  for,  while  the  rule 
is  undoubtedly  absolute  that  the  natural  products  of  the  earth, 
as  trees,  etc.,  can  only  be  reserved  in  writing,  it  seems  that 
grain,  vegetables,  and  other  growing  crops  that  come  within 
the  definition  friictus  industriales  may  be  prevented  from. 
passing  as  realty  b}''  a  parol  reservation.'  The  doctrine,  how- 
ever, is  in  direct  antagonism  with  the  settled  principles  of  law 
governing  the  construction  of  deeds;  and  if  it  is  conceded,  as 
it  must  be,  that  growing  crops,  unless  reserved,  pass  as  part  of 
the  land,  and  no  reservation  is  made  in  the  deed,  it  would 
naturally  follow  that  parol  evidence  would  be  inadmissible  to 
show  that  an  interest  did  not  pass  by  the  deed  which  the  law 
says  did  pass. 

§  6.  Trees  and  herl)age.  As  has  been  shown,  the  term 
"land"  embraces  not  only  the  soil,  but  its  natural  produce 
growing  upon  it  and  affixed  to  it.^  Trees  and  herbage,  in 
place,  are  therefore  integral  parts  of  the  realty,'  and  pass  with 
a  grant  of  the  land."  Trees  and  shrubbery  grown  upon  prem- 
ises leased  for  nursery  purposes  would  probably  be  held  to  be 
personal  property,  as  between  landlord  and  tenant;  but  be- 
tween vendor  and  vendee  they  would  pass  with  the  land  unless 
specially  reserved.     It  is  further  necessary  that  such  reserva- 

Wilms  V.  Jess,  94  111.  4G4;  Turner  v.  ger,  31  Iowa,  502.    See,  contra,  Mcll- 

Reynolds,  23  Pa.  St.  199.  vaine  v.  Harris,  20  Mo.  457. 

iBeai-  V.  Ritzer,   16    Pa.    St.  178;       <  Harrell  v.  Miller,  35  Miss.  700. 
Mcllvaine  v.  Harris,  20  Mo.  457,  sClaflin  v.  Carpenter,  4  Met.  (Mass.) 

2  Talbot  V.  Hill,  68  III.  106;  Bull  v.  580;  Rich  v.  Zielsdorf,  22  Wis.  544; 
Griswold,  19  111.  631.  Slocuiu  v.  Seymour,  36  N.  J.  L.  139; 

3  Backenstoss  v.  Stahler's  Adni'rs,  Carpenter  v.  MedforJl,  99  X.  C.  495. 
33  Pa.  St.  251 ;  Johnson  v.  Tautlin-       6  Smith  v.  Price,  39  111.  28. 


6  CONTKACT    OF   SALE. 

tion,  if  made,  shall  be  in  writinf^.  It  is  no  uncommon  thing 
in  sales  of  improved  property  to  make  verbal  arrangements, 
contemporaneous  with  the  written  contract,  whereby  a  reser- 
vation is  made,  or  attempted  to  be  made,  of  fruit  trees,  orna- 
mental shrubbery,  etc. ;  but,  whatever  may  be  the  rule  in  regard 
to  annual  crops,  it  seems  certain  that  with  regard  to  trees  the 
reservation  must  be  in  writing,  and  parol  proof  of  contempo- 
raneous verbal  agreements  is  inadmissible  to  impair  the  effect 
of  a  written  contract. 

§  7.  Manure.  In  cases  of  sales  of  agricultural  lands  it  is 
a  generally  accepted  rule  that  manure  lying  upon  the  prop- 
erty passes  to  the  vendee  as  an  incident  of  the  land,^  unless 
specially  reserved  in  the  deed.^  In  a  few  instances  a  distinc- 
tion has  been  made  between  manure  lying  in  heaps  in  a  barn- 
yard and  where  it  has  been  placed  or  spread  upon  the  land,' 
the  former  being  regarded  as  personalty ;  but  this  distinction, 
which  originally  was  made  in  favor  of  tenants,  is  not  generally 
recognized.^  The  rule  as  just  stated,  however,  does  not  apply 
to  manure  made  in  livery-stables,  or  in  buildings  unconnected 
with  agricultural  property  and  out  of  the  course  of  husbandry; 
nor  even  in  the  business  of  stock-raising,  the  stock  not  being 
fed  upon  the  products  of  the  land.'^  In  such  cases  the  manure 
is  not  considered  an  incident  to  the  land,  and  does  not  pass  by 
a  conveyance  of  it.^ 

§  8.  Appurtenances.  Land  is  ordinaril}^  conveyed  together 
with  the  hereditaments  and  appurtenances  thereunto  belong- 
ing. An  appurtenance  is  described  in  general  terms  as  some- 
thing belonging   to   another  thing  as   principal,  and   which 

1  Kittredge  v.  Woods,  3  N.  H.  503;  the  farm,  and  composted  with  earth 
Sawyer  v.  Twiss,  26  N.  H.  345 ;  Good-  or  vegetable  matter  taken  from  the 
rich  V.  Jones,  2  Hill  (N.  Y.),  142 :  Fay  soil,  and  the  frequent  application  of 
V.  Muzzey,  13  Gray  (Mass.),  53;  Has-  which  to  the  ground  is  so  essential  to 
leni  V.  Lockwood,  37  Conn.  500;  its  successful  cultivation,  should  be 
Chase  v.  Wingate,  68  Me.  204.  retained  for  use  upon  the  land.   Such 

2  Kittredge  v.  Woods,  3  N.  H.  503.    undoubtedly  is  the  general  usage  and 
SRuckman  v.  Cutwater,  28  N.  J.    understanding;  and  a  ditfei'ent  rule 

L.  581.  would  give  rise  to  many  difficult  and 
*  The  reason  for  the  rule,  it  is  said,  embarrassing  questions.  Fay  v.  Muz- 
is  that  it  is  for  the  benefit  of  agri-  zey,  13  Gray  (Mass.),  53. 
culture  that  manure,  which  is  usually  ^Sqow  v.  Perkins,  60  N.  H.  493. 
produced  from  the  droppings  of  cat-  *>  Plummer  v.  Plummer,   30  N,  H. 
tie  or  swine  fed  upon  the  products  of  558. 


SUBJfXT-MAlTEK.  7 

passes  as  an  incident  to  such  principal  thin^^^  Tims,  in  a  yrant 
of  lands,  everything  passes  which  is  necessary  to  the  full  en- 
joyment thereof  and  which  is  in  use  as  incident  or  appurtenant 
thereto.  But  land  is  never  appurtenant  to  land;-  nor  will  the 
term  carry  with  it  any  rights  or  interests  in  the  projjerty  of  the 
grantor  on  other  lands  which  he  owns;'  neither  can  it  be  made 
to  include  anything  not  situate  on  the  land  described  in  the 
deed,  even  though  it  belong  to  the  grantor  and  be  used  by 
him  in  his  business.*  It  is  designed  only  to  pass  incorporeal 
easements  or  rights  and  privileges,  and  of  these  only  such  as 
are  directly  necessary  to  the  proper  enjoyment  of  the  granted 
estate. 

§  9.  Houses  and  buildings.  Within  the  term  "  land  "  are  in- 
cluded all  houses  and  buildings  standing  thereon,"'  which  pass 
by  a  conveyance  of  the  land  without  special  mention;"^  and  in 
all  contracts  for  the  sale  and  conveyance  of  lauds  the  im- 
provements resting  upon  or  affixed  to  them  at  the  time  are 
considered  as  part  and  parcel  of  the  purchase.  On  the  other 
hand,  land  which  is  essential  to  the  use  of  a  building  will  pass 
by  a  conveyance  of  the  building  if  it  appears  that  such  was 
the  intention  of  the  parties.' 

But  houses  and  buildings  are  real  estate  only  while  in  place. 
A  severance,  proprio  vigore^  changes  the  character  of  the  prop- 
erty from  real  to  personal,  irrespective  of  the  means  by  which 
it  may  be  accomplished;  and,  so  far  as  the  legal  effect  is  con- 
cerned, it  matters  not  w^hether  the  severance  was  by  the  act  of 
God  or  the  act  of  man.^ 

1  Bouv.  Law  Diet.  13G.  v.  Hunter,  14  Wis.  683.    In  this  case 

-Grant  v.  Cliase,  17  Mass.  443;  a  mortgage  described  the  premises 
Leonard  v.  White,  7  Mass.  6;  Barrett  conveyed  as  "  the  three-story  brick 
V.  Bell,  82  Mo.  110.  building  now  occupied  by  them  as  a 

3  Frey  v,  Drahos,  6  Neb.  1 ;  Ogden  store,  situated  on  land  described  as 
V.  Jennings,  GO  N.  Y.  526.  lot  No.  1,  in  block  No.  9,  in  the  vil- 

^  Frey  V.  Drahos,  6  Neb.  1.  lago  of  Whitewater."    In  point  of 

5  Sudbury  v.  Jones,  8  Cush.  (Mass.)  fact  the  store  not  only  covered  lot 
189;  Ford  v.  Cobb,  20  N.  Y.  344;  No.  1,  but  also  the  west  two  feet  of 
Lipsky  V.  Borgmann,  52  Wis.  256.        lot  No.  10  in  that  block;  but  the  court 

6  West  V.  Stewart,  7  Pa.  St.  122;  held  that  all  the  land  covered  by  the 
Lelaud  v.  Gassett,  17  Vt.  403;  Wash-  building  would  pass,  such  being  the 
burn  V.  Sproat,  16  Mass.  449.  apparent  intention  of  the  parties, 

"  Gibson  v.  Brockway,  8  N.  H.  465 ;       ^  Buckout  v.  Swift,  37  Cah  433. 
Moore  v.  Fletcher,  16  Me.  66;  Wilson 


8  CONTKAOT   OF   SALE. 

§  10.  Fixtures.  A  fixture  has  been  defined  by  Bouvier  as 
a  personal  chattel  affixed  to  real  estate,  which  may  be  severed 
and  removed  by  the  party  who  has  affixed  it,  or  by  his  per- 
sonal representatives,  against  the  will  of  the  owner  of  the 
freehold.^  Yet  the  term  "  fixture  "  is  a  most  uncertain  title, 
and  in  many  cases  —  possibly  a  majority  —  is  used  in  exactly  a 
contrary  sense  to  the  definition  just  given,  being  employed  to 
indicate  a  chattel  annexed  to  realty  so  as  to  become  a  part  of 
it.  Indeed,  it  is  difficult,  if  not  impossible,  to  give  a  definition. 
of  the  term  which  may  be  regarded  as  of  universal  applica- 
tion, or  to  formulate  in  one  rule  that  which  will  enable  us  to 
determine  the  question  as  to  whether  given  appendages  or  an- 
nexations to  houses  or  lands  are  to  be  considered  as  part  of  the 
realty,  and  hence  partaking  of  its  immovable  character,  or 
simply  as  personal  property  which  follows  the  person  of  the 
owner. 

It  is  a  rule  of  the  common  law  that  whatever  is  accessory  to 
real  estate  is  a  part  of  it,  and  passes  by  alienation.  The  neces- 
sities of  trade  have  caused  a  modification  of  this  rule  so  far 
as  it  rnay  affect  the  relation  of  landlord  and  tenant,  and  courts 
recognize  and  enforce  the  right  of  removal  by  tenants  of  chat- 
tels annexed  to  the  freehold  for  the  purposes  of  manufacture, 
agriculture  or  domestic  convenience.^  But  as  between  vendor 
and  vendee  the  rule  is  still  applicable,  except  so  far  as  it  may 
have  IJeen  modified  by  statutory  regulation;  and,  where  the 
question  is  not  affected  by  the  terms  of  the  contract,  appurte- 
nances and  chattels  attached  to  the  land,  or  buildings  for  per- 
manent and  habitual  use,  and  contributing  to  their  value  and 
enjoyment,  pass  by  the  grant  of  the  freehold,  and  after  con- 
veyance cannot  be  severed  by  the  vendor  or  any  person  other 
than  the  owner.^ 

1 1  Bouv.  Law  Diet.  593.  attending  each  case,  has  come  the 

2  It  may  be    remarked    here  that  difficulty  of  settling  and  establishing 

very  many,  and,  indeed,  a  large  pro-  a  universal  rule.     But  the  cases  be- 

portion,  of  the  cases  involving  ques-  tween  vendor  and  vendee  are  less 

tions  as  to  whether  particular  articles  difficult  as    well  as  numerous,   and 

were  fixtures  or  not  have  arisen  be-  the  rule  is  better  settled, 

tween  landlord  and  tenant ;  and,  from  s  Tourtellot    v.     Phelps,    4     Gray 

the  very  nature  of  the  relation  be-  (Mass.),  378;  Kennard  v.  Brough,  64 

tween  these  parties,  as  well  as  from  Ind.  23 ;  Lapham  v.  Norton,  71  Me. 

the   widely  different  circumstances  83;  Westgate   v.  Wixon,  128  Mass. 


SUBJECT-MATTER.  [) 

Just  what  sliall  be  regarded  as  a  fixture,  and  what  a  chattel 
sufficient  to  escape  the  operation  of  the  foregoing  rule,  is  not 
always  an  easy  matter  to  decide.  Many  things  pass  by  a  deed 
of  lands,  being  put  there  by  the  vendor,  which  a  tenant  who 
had  put  them  there  might  have  removed;  and  they  will  pass 
to  the  vendee,  although  attached  for  the  purposes  of  trade, 
manufacture,  or  even  for  ornament  or  domestic  use.  Thus, 
utensils  and  machinery  appertaining  to  a  building  for  manu- 
facturing purposes;^  gas-pipes,  fittings  and  other  apparatus 
designed  for  purposes  of  illumination,-  including  even  chande- 
liers, burners,  etc.,  when  it  is  apparent  that  such  was  the  inten- 
tion of  the  parties,''  or  they  are  clearly  shown  to  be  accessories 
and  not  merely  furniture;^  water-pipes  and  conduits;'  ranges, 
boilers  and  tanks  attached  in  a  permanent  manner."  Stoves 
and  hot-air  furnaces  or  other  appliances  for  heating,  when  put 
in  as  a  permanent  annexation,"  have  been  held  to  pass,  though 
on  this  point  the  authorities  are  not  agreed.^  AVindow  and 
door  screens,"  storm-doors,  or  other  adjuncts  made  and  fitted  to 
a  house,  usually  go  with  it,  though  if  never  actually  used  and 
the  house  is  complete  without  them,  the}'"  might  not  pass  even 
if  on  the  premises;'"  but  generally  anything  that  the  vendor  has 

304;  Alvord  Mfg.   Co.  v.  Gleason,  36  511);  an  iron  drill  fastened  by  screws 

Conn.  86;  Van  Kurenv.  R.  R.  Co.  38  and  braces  (Savings  B'k  v.  Stephens 

N.  J.  L.  165;    Stillman  v.  Flenniker,  Tool  Co.  130  Mass.  547). 
58  Iowa,  45a  ^IcKeage  v.  Ins.  Co.  81  N.  Y.  38; 

1  As  potash  kettles  in  an  ash  factory  Hays    v.   Doane,    11    N.    J.    Eq.    96. 

(Miller  v.  Plumb,  6  Cow.  (X.  Y.)  GU5j ;  Contra,  Vaughn  v.  Haldeman,  33  Pa. 

a  cotton-gin  permanently  fixed  (Brat-  St.  522. 

ton  V.  Clawson,  2  Strob.  (S.  C.)  478) ;       spratt    v.    Whittier,    58  Cal.    126; 
a  steam-engine  to  drive  a  bark-mill  Keeler  v.  Keeler,  31    N.  J.  Eq.  191 ; 
(Oves  v.  Oglesby,  7  Watts  (Pa.),  106);  and  see  Johnson  v.  Wiseman,  4  Met, 
kettles  set  in  brick  in  a  print-works  (K3'.)3o9;  Smith  v.  Commonwealth, 
(Despatcli  Line  v.  Bellamy  I\Ifg.  Co.  14  Bush(Ky.).  31. 
12  N.  li.  207);  iron  stoves  fixed  to  the       ^  Keeler  v.  Keeler.  31  X.  J.  Fa\.  191. 
brick-work  of  cliimneys  ((ioddard  v.        •''Pililbrick  v.  Emrv,  97  Mass.  134. 
Chase,  7  Mass.  432);  fixed  tables  in  a       «Fralt  v.  Whittier,  58  Cal.  126. 
mill  (Sands  v.  Pfeififer,  10  Cal.  259);       'Goddard  v.   Chase,   7  Mass.  432; 
blower  and  pipe  conveying  air  to  a  Blethen  v.  Towle,  19  Me.  252 ;  Stock- 
forge  (Alvord  Mfg.  Co.  v.  Gleason,  80  well  v.  Campbell,  39  Conn.  302. 
Conn.  86);  a  factory  bell  (Ibid.,  and        ''See  Towne  v.  Fisk,  127  Mass.  125. 
Weston   v.  Weston,   102   Mass.   511);       i'Pi'tengill   v.   Evans,   5  X.   II.   54; 
heavy  iron  table  in   a  glass  factory  Fratc  v.  Whittier,  58  Cal.  126. 
(Smith  Paper  Co.  v.  Serviu,  130  Mass.      lo  Peck  v.  Batchelder.  40  Vt.  233. 


10  CONTRACT   OF   SALE. 

annexed  to  a  building  for  the  more  convenient  use  and  improve- 
ment of  the  premises  passes  by  his  deed  unless  specifically  re- 
served. 

§  11.  Continued  —  Kule  for  determination.  The  rule, 
therefore,  would  seem  to  be  that,  where  the  annexation  is  per- 
manent in  its  character  and  essential  to  the  purpose  for  which 
the  property  is  used  or  occupied,  it  should  be  regarded  as 
realty  and  pass  with  the  grant  of  the  freehold;  and  this  not- 
withstanding the  connection  between  them  may  be  such  that 
it  may  be  severed  without  physical  or  lasting  injury  to  either.^ 

The  mode  of  annexation,  while  of  controlling  efficacy  as 
between  landlord  and  tenant,  and  possibly  between  executor 
and  heir,  is  of  comparatively  small  moment  as  between  vendor 
and  vendee — the  purposes  of  the  annexation  and  the  intent  with 
which  it  was  made  being,  in  most  cases,  the  important  con- 
sideration.^ Physical  annexation  is  not  indispensable  provided 
the  article  is  of  an  accessory  character,  and  in  some  way  in 
actual  or  constructive  union  with  the  principal  subject,'  and 
not  merely  brought  upon  it.^  It  is  true  the  mode  of  annexa- 
tion, in  the  absence  of  other  proof  of  intent,  may  become  con- 

J  Green  v.  Phillips,  26  Gratt.  (Va.)  ^  a  thing  may  be  said  to  be  con- 

752;    Smith    v.    Commonwealth,    14  structively   attached    where    it    has 

Bush  (Ky.),  31 ;  Parsons  v.  Copeland,  been  annexed,  but  is  separated  for  a 

38  Me.  537 ;  Keeler  v.  Keeler,  31  N.  J.  temporary  purpose,  as  in  tlie  case  of 

Eq.  191 ;  Bishop  v.  Bishop,  11  N.  Y.  a  mill-stone  removed  for  the  purpose 

123 ;  Pea  v.  Pea,  35  Ind.  387 ;  Philip-  of  being  dressed ;  or  where  the  thing, 

son  V.  Mullanphy,  1  Mo.  620;  Cohen  although  never  physically  fixed,  is 

V.  Kyler,  27  Mo.  122;  Wadleigh  v.  an  essential  part  of  something  which 

Janvrin,   41  N.   H.    503;    Corliss  v.  is  fixed,  as  in  the  case  of  keys  to  a 

McLagin,  29  Me.   115 ;  Bringhoff  v.  door,  or  loose  covers  to  fixed  kettles. 

Munzenmaier,  20  Iowa,  513.   Ponder-  It  is  perhaps  somewhat  on  this  prin- 

ous  articles,  although  only  annexed  ciple,  observes  Mitchell,  J.,  that  the 

to  the  land  by  the  force  of  gravita-  permanent  and  stationary  machinery 

tion,  if  placed  there  with  the  mani-  in  a  structure  especially  erected  for  a 

fest  intent  that  they  shall  remain,  particular  kind  of  manufacturing  has 

may  be  fixtures.  Wolford  v.  Baxter,  been   held    fixtures,   although  very 

33  Minn.  12.  slightly  or  not  at  all  physically  con- 

2McRea  v.    Bank,    66  N.  Y.  489;  nected  with    the  building,   because 

Wheeler    v.    Bedell,    40    Mich.    693;  without  it  the  structure  would  not 

Richardson  v.   Borden,  42  Miss.  71;  be  complete  for  the  purpose  for  which 

Eaves  v.  Estes,  10  Kan.  314 ;  Leonard  it  was  erected.     Wolford  v.  Baxter, 

V.  Stickney,  131   Mass.  514;  Close  v.  33  Minn.  12. 

Lambert,  78  Ky.  229;  Thomas  v.  i  Wolford  v.  Baxter,  33  Llinn.  12. 
Davis,  76  Mo.  72. 


SUlJJECT-MA'rrEK.  1 1 

trolling,  as  where  it  is  in  itself  so  inseparable  and  permanent 
as  to  render  the  article  necessarily  a  part  of  the  realty ; '  and 
even  in  case  of  a  less  thorough  method,  the  manner  of  attach- 
ment may  still  afford  convincing  evidence  that  the  intention 
was  to  make  the  article  a  permanent  accession.-'  Still  there  is 
no  univei'sal  test;  and  neither  the  mode  of  annexation  nor  tho 
manner  of  use  can  ever  Ije  said  to  be  entirely  conclusive,  tho 
express  or  implied  understanding  of  the  parties  being  usually 
the  pivot  on  which  the  question  turns.'' 

The  greatest  diiliculty  in  the  application  of  the  rules  for 
determining  fixtures  occurs  in  the  case  of  what  may,  under 
ordinary  circumstances,  be  fairly  classed  as  furniture;  as,  con- 
trivances for  heating  and  illumination.     Lamps,  chandeliers 

1  Lyle  V.  Puliner,  42  Mich.  314;  give  this  subject,  and  a  careful  review 
Warner  v.  Kenning,  25  Minn.  173.  of  the  authorities,  I  have  reached  the 
Poles  adapted  and  used  for  cultivat-  conclusion  that  the  united  applica- 
ing  hops  on  a  farm  have  been  held  to  tion  of  the  following  requisites  will 
be  part  of  the  realty,  equally  while  be  found  the  safest  criterion  of  a  fixt- 
in  use  and  while  lying  piled  upon  the  ure :  1,  actual  annexation  to  the  realty 
premises.  Being  intended  for  perma-  or  soinetliing  appurtenant  thereto;  2, 
nent  use  upon  tlie  land  and  necessar}'  appropriation  to  the  use  or  purpose 
for  its  proper  improvement,  by  simply  of  that  part  of  the  realty  with  which 
being  placed  in  heaps  for  a  tempoi-ary  it  is  connected;  3,  the  intention  of 
purpose,  they  would  uot  lose  their  the  party  making  the  annexation  to 
distinctive  character  as  appurtenant  make  the  article  a  permanent  acces- 
to  the  land.  Bishop  V.  Bishop,  11  N.  Y.  sion  to  the  freehold  —  this  intention 
123.  being  inferred  from  the  nature  of  the 

"Wheeler  v.  Bedell,  40  Mich.  693;  article  alhxed,  the  relation  and  situa- 
Funk  V.  Brigaldi,  4  Daly  (N.  Y.),  359.    tion  of  tlie  party  making  the  anuexa- 

3  As,  for  instance,  where  the  build-  tion,  the  structure  and  mode  of  an- 
ing  is  constructed  expressly  to  re-  nexation,  and  the  purpose  or  use  for 
ceive  the  debatable  articles,  machin-  which  the  annexation  was  made. 
ery,  utensils,  etc.,  and  they  could  not  This  criterion  furnishes  a  test  of  gen- 
be  removed  without  material  in juiy  eral  and  uniform  application  —  one 
to  tho  building;  or,  where  the  article  by  which  the  essential  qualities  of  a 
would  be  of  no  value  except  for  use  fixture  can,  in  most  instances,  be  cer- 
in  that  particular  building,  or  could  tainly  and  easily  ascertained,  and 
not  be  removed  therefrom  without  tends  to  harmonize  the  apparent  con- 
being  destroyed  or  greatly  damaged,  flict  in  the  authorities  relating  to  tho 
McRea  v.  Bank,  66  N.  Y.  489.  A  rule  subject.  It  may  be  found  iuconsist- 
for  determining  whether  or  not  a  ent  with  the  reasoning  and  distinc- 
chattel  is  so  annexed  to  the  realty  as  tions  in  many  of  the  cases,  but  it  is 
to  become  a  part  of  it  is  laid  down  b}'  believed  to  be  at  variance  with  the 
Bartly,  J.,  in  TeafC  v.  Ilewilt,  1  Ohio  conclusion  in  but  few  of  the  well- 
St.  511,  as  follows:  "From  tlie  ex-  considered  adjudications."' 
amination  I  have  been  enabled  to 


12  CONTRACT   OF    SALK. 

and  gas-fixtures,  generally,  are  usually  regarded  as  furniture. 
True,  they  are  often  sold  with  the  house,  which  can  hardly  be 
said  to  be  complete  without  them ;  but,  unless  there  has  been  a 
special  agreement  in  regard  to  them,  they  will  not  pass  under  the 
general  clauses  of  the  deed.^  Mirrors  are  ordinarily  regarded 
only  as  furniture ;  nor  will  the  fact  that  they  are  fastened  to  the 
walls  for  safety  or  convenience  deprive  them  of  their  character 
as  personal  chattels  and  make  them  part  of  the  realty;'^  but  if 
they  are  set  in  the  walls,  with  frames  corresponding  to  the 
cabinet-work,  and  their  removal  would  leave  the  walls  in  an 
unfinished  condition,  the  rule  is  otherwise.'  Portable  hot-air 
furnaces  have  been  held  to  come  within  the  same  rule,*  and 
would,  doubtless,  be  governed  by  the  same  principles;  but  in 
this,  as  in  every  case  involving  the  questions  just  discussed,  the 
intention  of  permanent  annexation  must  decide  the  matter; 
and  where  it  appears  that  either  gas-fixtures^  or  furnaces® 
were  considered  as  integral  parts  of  the  realty,  and  as  such 
were  to  pass  with  the  buildings,  effect  will  be  given  to  such 
intention,  notwithstanding  no  mention  has  been  made  in  the 
deed;  and,  generally,  in  all  cases  of  doubt,  the  rule  for  deter- 
mining what  is-  a  fixture  should  be  construed  most  strongly 
against  the  vendor.'^  Machinery,  though  essentiall}^  of  a  per- 
sonal nature,  yet  when  put  into  a  building  for  manufacturing 
purposes,  becomes  part  of  the  realty  and  passes  by  a  convey- 
ance; and  the  true  criterion  in  such  case  is  not  whether  it  may 
be  detached  and  removed  from  the  premises  without  injury.^ 
It  will,  of  course,  be  understood  that  parties  themselves  may, 
by  express  agreement,  fix  upon  chattels  annexed  to  realty 
whatever  character  they  may  see  fit.^     Hence,  property  which 

1  Vaughn  v.  Haldeman,  33  Pa.  St.  stones  and  even  the  bolting  cloth,  are 
522;  Rogers  v.  Crow,  40  Mo.  91;  parts  of  the  mill  and  of  the  freehold, 
McKeage  v.  Ins.  Co.  81  N.  Y.  38 ;  and  cannot  be  levied  on  as  personal 
Jarechi  v.  Philharmonic  Soc.  79  Pa.  property  (Gray  v.  Holdship,  17  S.  & 
St.  403.  R.  (Pa.)  413);  while  the  mill  chains, 

2  McKeage  v.  Ins.  Co.  81  N.  Y.  38.  dogs  and  bars,  being  in  their  appi'o- 

3  Ward  V.  Kilpatrick,  85  N.  Y.  413.  priate  places  at  the  time  of  convey- 
*  Towne  v.  Fiske,  127  Mass.  125.  auce,  have  been  held  to  pass  by  a  deed 
SFratt  V.  Whittier,  58  Cal.  126.  of  the  mill.  Farrar  v.  Stackpole,  6 
eStockwell  v.  Campbell,  39  Conn.  Greenl.  (Me.)  154. 

362;  Thielman  V.  Carr,  75  111.  385.  ^Fratt  v.    Whittier,   58  Cal.    126; 

'  Fratt  V.  Whittier,  58  Cal.  385.  Bartholomew  v.  Hamilton,  105  Mass. 

8  Thus  the  wheels  of  a  mill,  the   239. 


eUBJECT-MArrER.  13 

the  law  regards  as  permanent  fixtures  may  be  by  them  con- 
sidered as  personal  chattels,  and  that  which,  in  contemplation 
of  law,  is  regarded  only  as  personalty  they  may  regard  as  a 
fixture;  and,  whatever  may  be  their  agreement,  courts  will  en- 
force it,^  If  the  deed  is  silent  in  respect  to  same,  or  conveys 
onl}'  the  realty  and  its  appurtenances,  the  prior  agreement  is 
competent  to  show  intention  and  fix  the  character  of  annex- 
ations. On  the  contrary,  if  the  deed  mentions  specific  fixtures 
and  personal  property,  none  other,  as  a  rule,  will  pass  thereby.^ 
But  while  the  agreement  of  parties  may,  to  a  certain  extent, 
supersede  the  general  rule  of  law,  such  agreements  cannot  be 
made  to  injuriously  affect  the  interests  of  third  parties  who 
buy  without  notice.  A  purchaser  of  realty,  in  the  absence  of 
notice  to  the  contrary,  has  a  right  to  presume  that  he  takes 
the  estate  with  every  appurtenance  wliich,  under  the  general 
rules  of  law,  passes  by  a  grant  of  land.-*  As  to  him  every 
permanent  impi'ovement  or  annexation  to  the  land  becomes  a 
fixture,  Avhich  cannot  be  withheld  or  removed;  and  though 
there  are  cases  which  seem  to  hold  a  contrary  doctrine,  they 
are  not  sustained  by  the  volume  of  authority.* 

1  Smith  V.  Waggoner,  50  Wis.  155.  the  land  of  another  a  permanent  im- 

2  It  is  not  contended  that  parties  provement,  with  the  right,  when  he 
may,  by  contract,  make  personal  desires,  to  enter  and  take  it  there- 
property  real  or  personal  at  will,  but  from,  he  may  exercise  that  right  at 
that  where  an  article  personal  in  its  any  time  before  the  permission  or 
nature  is  so  attached  to  the  realty  license  is  revoked  by  the  land-owner, 
that  it  can  be  removed  without  ma-  and  probably  would  have  tlie  right 
terial  injury  to  it  or  to  the  realty,  the  to  enter  and  remove  the  fixture  within 
intention  with  which  it  is  attached  a  reasonable  time  after  the  revoca- 
will  govern ;  and  if  there  is  an  ex-  tion ,  and  it  would  seem  that  an}' 
press  agreement  that  it  shall  remain  subsequent  vendee,  who  purchased 
personal  property,  or  if,  from  the  cir-  the  land  with  notice  of  such  parol 
cumstances  attending,  it  is  evident  agreement  or  license,  and  of  the  in- 
or  may  be  presumed  that  such  was  terest  of  the  parties  in  the  fixture, 
the  intention  of  the  parties,  it  will  be  would  be  bound  b}-  such  agreement, 
held  to  have  retained  its  personal  But  this  is  the  limit  of  the  doctrine, 
character.  Ford  v.  Cobb,  20  N.  Y.  and  it  cannot  be  carried  to  the  extent 
344;  Eaves  v.  Estes,  10  Kan.  314;  of  binding  or  affecting  injuriously 
Coleman  v.  Lewis,  27  Pa.  tit.  291;  third  parties  to  whom  the  laud  has 
Hunt  V.  Iron  Co.  97  Mass.  279 ;  Rich-  been  conveyed  without  reservation 
ardson  v.  Copeland,  G  Gray,  536;  and  to  whose  notice  the  parol  license 
Haven  v.  Emery,  33  N.  H.  66.  had  not  been  brought     Rowand  v. 

^  As  where  a  party,  under  a  parol    Anderson,  33  Kan.  204. 
permission  or  a  license,  places  upon       *  Haven   v.    Emery,  33   X.   H.  06 ; 


14  CONTKACT    OF    SALE. 

§  12.  Morti^agod  cluittels  affixed  to  realty.  Very  intricate 
questions  will  sometimes  arise  between  vendees  of  realty  and 
third  persons  claiming  rights  or  equities  in  what  are  ordinarily 
termed  fixtures.  As  between  vendor  and  vendee  the  law  is 
now  well  settled,  and  the  same  princijjles  that  apply  to  contro- 
versies between  the  parties  will  usually  be  effective  as  between 
the  parties  and  third  persons  where  nothing  has  occurred  to 
impart  notice  of  outstanding  rights  and  interests.  But  where 
third  persons,  prior  to  the  purchase  by  the  vendee,  have  ac- 
quired substantial  rights,  such  as  would  be  protected  and  en- 
forced were  it  not  for  the  purchase,  the  law  is  not  so  clear. 
With  respect  to  the  integral  parts  that  go  to  make  up  a  build- 
ing—  the  bricks,  boards,  etc. —  it  is  doubtful  whether  even 
direct  and  positive  notice  would  avail  to  preserve  the  creditor's 
rights  or  liens  of  third  persons,  except  as  they  might  be  saved 
by  a  properly  secured  mechanic's  lien;  as  these  things,  by 
being  incorporated  into  the  building,  lose  their  individuality 
and  identity'-,  and  become  absorbed  in  and  made  a  part  of  the 
realty  rather  than  a  simple  annexation  to  it.  With  respect  to 
ponderous  and  bulky  articles,  or  articles  which,  after  annexa- 
tion, still  preserve  their  original  form  and  identity,  and  are 
capable  of  severance,  a  different  rule  would  seem  to  prevail. 
Articles  of  this  kind  are  legitimate  subjects  for  fixtures,  and 
are  of  that  class  of  property  about  which  the  law  permits  par- 
ties to  contract  so  as  to  control,  as  between  themselves,  their 
character  after  being  affixed,  making  them  either  personal 
property  or  real  estate.  The  mortgaging  of  such  articles  as 
personal  property  would,  as  between  the  parties  and  those 
having  notice  thereof,  make  them  such.  Hence  it  has  been 
held  that  where  the  owner  of  real  estate  executes  a  mortgage 
upon  chattels  which  may  properly  bo  made  fixtures,  and  sub- 
sequently affixes  them  to  real  estate,  no  person  having  knowl- 
edge of  such  facts  can,   by  purchase   of  the   real  estate   or 

Dostal  V.   McCaddon,  35  Iowa,  318;  ervation  to  one  who   continues  the 

Houx  V.  Seat,  26  Mo.  178;  Rowand  business  of  hotel-l^eeping  upon  the 

V.   Anderson,  33  Kan.   264 ;  Powei-s  premises,  if  such  sign  is  attached  so 

V.  Dennison,  30  Vt.  752 ;  Westcott  v.  as  to  be  immovable  without  force, 

Delano,  20  Wis.  541,     A  hotel  sign  is  and  was  so  placed  with  the  intent  of 

a  fixture  and  appurtenant  to  a  liotel,  its  remaining  a  permanent  sign  for 

BO  as  to  pass  by  a  conveyance  of  the  the  hotel.     Redlon  v.  Barker,  4  Kan. 

hotel  and  appurtenances  without  res-  382. 


SUHJKCT-MArrER. 


15 


otherwise,  acquire  from  the  mortgagor  any  title  to  sucli  chat- 
tels paramount  to  the  mortgage  thereof.' 

This  doctrine  has  been  expressly  controverted,  however,  in. 
other  cases,  where  it  has  been  held  that,  where  the  articles  in 
question  are  actually  and  firmly  annexed  to  tiic  freehold  in  as 
permanent  and  substantial  a  manner  as  is  usual  and  as  is 
adapted  to  the  nature  and  objects  of  their  employment,  though 
capable  of  being  removed  without  injury  to  the  building,  they 

1  Sovvdeu  &  Co.  v.  Craig,  26  Iowa,  that  neither  a  prior  nor  subsequent 
156;  and  see  Denhaui  v.  Sankey,  38  mortgagee  of  land  can  claim,  as 
Iowa,  271.  In  the  case  of  Ford  v.  subject  to  the  lien  of  his  mort- 
Cobb,  20  N.  Y.  344,  salt  kettles  were  gage,  chattels  brought  upon  and 
bought  by  the  owner  of  the  fee  and  affixed  to  the  lands  under  an  agree- 
mortgagod  to  tlie  seller  as  personalty  nient  between  the  owner  of  the  fee 
to  secure  the  purchase  money,  and  and  the  owner  of  the  chattels  that 
were  afterwards  allixud  to  the  free-  the  character  of  the  latter  as  a  per- 
hold  by  being  set  in  brick  founda-  sonal  chattel  is  not  to  be  changed, 
tions,  from  which  they  could  be  re-  Folger,  J.,  in  delivering  the  opinion 
moved  only  at  an  expense  of  $50.  It  of  the  court,  said :  "  AVhile  there  can 
was  held  that  such  salt  pans  retained  be  no  doubt  tliat  the  intention  of  the 
their  character  as  personal  chattels  as  owner  of  the  land  was  that  the  engine 
against  the  subsequent  purchaser  of  and  boilers  should  ultimately  become 
the  realty  who  had  no  notice  of  the  part  of  the  realty  and  be  permanently 
chattel  mortgage  other  than  that  affixed  to  it,  this  was  subordinate  to 
constructively  given  by  the  filing  of  the  prior  intention  expressed  by  the 
the  chattel  mortgage  for  record,  agreement.  That  full}'  shows  her  in- 
Eaves  v.  Estes,  10  Kan.  314,  arose  be-  tention  and  the  intention  of  the 
tween  the  vendee  of  the  freehold  and  plaintilT  that  the  act  of  annexing 
a  chattel  mortgagee,  the  purchaser  of  them  to  the  freehold  should  not 
tlie  freehold  having  no  notice  of  the  change  or  take  away  tlie  character  of 
chattel  mortgagee's  lien.  The  pro])-  them  as  chattels  until  the  price  of 
erty  mortgaged  was  an  engine  put  them  had  been  fully  paid ;  and  as  par- 
into  and  used  as  motive  power  in  a  ties  may,  by  their  agreement  express- 
mill.  The  court  say :  "  But  when  we  ing  their  intention  so  to  do.  preserve 
consider  the  purpose  of  the  parties  as  and  continue  the  chattels  as  personal 
evinced  by  the  mortgage  to  make  the  property,  there  can  be  no  doul>t  but 
engine  retain  the  character  of  a  chat-  that,  as  between  ourselves,  the  agree- 
tel  regardless  of  its  attachment  to  ment  in  this  case  was  fully  sufUcient 
the  mill,  and  as  the  mortgage  vio-  to  that  end."  See,  also,  Sheldon  v. 
lated  no  principle  of  law,  wrought  no  Edwards,  35  N.  Y.  279 ;  Shell  v. 
injury  to  the  rights  of  others,  and  Haywood,  16  Pa.  St.  523.  The  fol- 
was  in  the  interest  of  trade,  we  have  lowing  cases  also  tend  to  support  the 
no  doubt  that  the  engine  continued  doctrine  of  the  text :  Russell  v.  Rich- 
to  be  personal  proi)erty."  But  see  ards,  10  Me.  429;  Ilensley  v.  Brodie, 
Voorhees  v.  McGinnis,  48  N.  Y.  278.  16  Ark.  511;  Crippeu  v.  Morrison,  13 
In  Tifft  V.  Horton,  53  N.  Y.  377,  Mich.  34. 
the  New  York  court  of  appeals  held 


16  COATKACT    OF    SALE. 

thereby  become,  and  are  presumed  to  be,  a  permanent  accession 
to  the  freehold;  and  that  the  execution  of  a  chattel  mortgage 
thereon  prior  to  annexation  is  not  sufficient  to  overthrow  this 
presumption  and  raise  the  contrary  one  of  an  intent  to  pre- 
serve their  personal  character.  Hence,  it  is  contended,  such 
articles,  becoming  a  part  of  the  realty,  will  pass  to  a  vendee 
upon  his  purchase  of  same,  while  the  remedy  of  the  mortgagees 
will  be  against  those  who  wrongfully  converted  the  personal 
into  real  property.'  So,  also,  it  has  been  held  that,  although 
the  parties  concerned  may  make  a  binding  agreement  that 
what  would  otherwise  be  a  fixture  shall  be  regarded  as  per- 
sonalty, such  agreement  will  not  affect  the  rights  of  a  subse- 
quent vendee  or  mortgagee  of  the  realty  without  notice  of  it,^ 
and  that  the  delivering  and  filing  of  a  chattel  mortgage  upon 
the  property  w^iich  is  the  subject  of  the  agreement  does  not 
constitute  the  required  notice.' 

The  weight  of  authority  fully  supports  the  rule  last  stated ; 

1  As  where  K.,  being  the  owner  of  upon  them  and  other  property  to  M. 

a  mill,  erected  a  substantial  building  After  the  repairs  and  before  the  last 

adapted  to  contain  machinery;    he  chattel    mortgage  he    gave  another 

placed  therein  a  steam-engine,  boil-  real-estate  mortgage  upon  the  prem- 

ers,  shafting,  etc. ;  the  boilers  were  ises.  The  plaintiff  acquired  title  upon 

set  in  brick,  while  the  shafting  and  foreclosure  and  sale  under  the  two 

gearing  were  constructed  with  spe-  real-estate  mortgages.      W.  and  M. 

cial    reference    to    the    place,   were  subsequently  removed  the  machinery 

adapted  to  the  nature  and  objects  of  covered   by  the  mortgages.      In  an 

their  employment,  and  were  firmly  action  to    recover    possession,  held, 

fastened  to  the  building,  but  could  that  the  property  was  part  of  the 

be  removed  without  injury  to  the  freehold  and  passed  to  plaintiff  upon 

walls.     They  were  put  up  without  his  purcliase.    Voorhees  v.  McGiunis, 

special  intent  on  the  part  of  K.  either  48   N.    Y.  278 ;    and  see    Pierce    v. 

of  making  them  a  part  of  the  free-  George,    108  Mass.   78;   Tibbetts    v. 

hold  or  of  removing  them  at  a  future  Moore,  23  Cal.  208. 

time.      K.  borrowed  the  money  to  2  gee  Case  Mfg.  Co.  v,  Garver,  13 

make  the   improvements,   giving  a  N.   E.    Rep.    (Ohio)  493;    Ridgeway 

mortgage  on    the    property.      Soon  Stove  Co.  v.  May,  141  Mass.  557 ;  and 

after,  the  old  boilers  were  taken  out  see  Fortman  v.  Goepper,  14  Ohio  St. 

and  replaced  by  new  ones.    While  the  565. 

new  boilers  were  at  tlie  shop  in  pro-  ^  Qn  the  principle  that  an  instru- 

cess  of  construction,  and  a  large  por-  ment,  to  afford  constructive  notice  by 

tion  of  the  engine  was  tliere  being  registration,  must  appear  among  the 

repaired,  K.  gave  a  chattel  mortgage  records  of  interests  affecting  real  es- 

upon  them  to  W.,  and,  after  the  re-  tate,  see  Case  Mfg.  Co.  v.  Garver,  13 

pairs  were  completed  and  the  machin-  N.  E.   Rep.  (Ohio)  493;  Brennan  v. 

ery  in  running  order,  gave  another  "NVhitaker,  15  Ohio  St.  446. 


SUBJECT-MATTEE.  17 

and  it  is  believed  tliat  the  wisdom  of  such  latter  rule  will  be 
manifest  upon  careful  investigation,  as  being  more  in  accord- 
ance with  the  policy  of  our  laws  relative  to  notice,  registra- 
tion, etc.^ 

§  13.  Chattels  left  upon  land.  It  would  hardly  bo  con- 
tended by  any  one  that  detached  articles,  distinctively  personal 
in  their  nature,  left  upon  realty  by  the  vendor  at  the  time  of  a 
sale,  Avould,  by  the  conveyance,  pass  to  the  vendee,  unless  the 
articles  were  such  as  had  been  or  were  intended  to  be  actuall}' 
employed  in  connection  with  the  land.  In  this  latter  event 
they  might,  without  doing  violence  to  any  known  precedent  or 
rule  of  law,  be  properly  classed  as  fixtures;  as  where  poles 
used  during  the  season  for  supporting  vines  were  at  the  time 
of  sale  piled  up  and  unemployed.^  But  generally  a  chattel 
must  be  actually  or  constructively  affixed  to  the  land  to  per- 
mit it  to  pass  by  a  deed  of  the  land  without  special  mention.' 

Hence,  where  wood,  rails,  timber,  stone  or  other  articles  of 
a  strictly  personal  nature  are  upon  the  land  at  the  time  of  sale, 
they  will  notwithstanding  retain  their  character,  and,  unless 
mentioned  in  special  terms,  will  not  pass  by  the  deed.^  The 
rule  also  seems  to  be  settled  that  the  title  to  chattel  property 
lying  upon  land  at  the  time  of  sale,  but  reserved  by  the  vendor 
from  the  conveyance,  does  not  become  vested  in  the  grantee 
of  the  land  by  mere  lapse  of  time  and  neglect  of  the  grantor 
to  remove  it,  however  long  continued.  So  long  as  the  land- 
owner merely  suffers  it  to  remain  without  demanding  a  re- 
moval or  setting  up  any  adverse  claim,  no  title  vests  in  him 
through  delay.  Even  if  the  delay  amounts  to  an  abandon- 
ment, this  does  not  necessarily  pass  title  to  the  land-owner.' 

§  14.  Land  under  water.  The  question  as  to  the  ownership 
of  the  soil  covered  by  water,  particularly  in  the  case  of  uaviga- 

1  See  Powers  v.  Dennison,  30  Vt.  v.  Lewis,  6  Ala.  C82;  Teaff  v.  Hewitt, 
752;  Hunt  v.  Iron  Co.  97  Mass.  279;    1  Ohio  St.  511. 

Trull  V.  Fuller,  28  Me.  545 ;  Haven  V.  •'Cook    v.    Whiting,    16    lU.    480; 

Emery,  33  N.  H,  66;  Prince  v.  Case,  Woodman   v.  Pease,   17  N.  H.  282; 

10  Conn.  375;  Dostal  v.  McCaddon,  Peck  v.  Brown,  5  Nev.  81. 

35  Iowa,  318;  Throop's  Appeal,   70  5  Noble  v.  Sylvester,  42  Vt.  146.    In 

Pa.  St.  395.  this  case  a  quantity  of  building  stone 

2  Bishop  V.  Bishop,  11  N.  Y.  123.  was  left  upon  the  land,  but  a  special 

3  Woodman  v.  Pease,  17  N.  H.  282:  reservation  of  same  was  made  in  the 
Peck  v.  Brown,  5  Nev.  81 ;  Carpenter  deed. 

2 


18  CO.-TTEACT   OF    SALE. 

ble  lakes  or  rivers,  is  one  which  each  state  is  at  liberty  to  deter- 
mine for  itself  in  accordance  with  its  local  law  and  public  pol- 
icy; and  though  it  is  a  right  which  properly  belongs  to  them 
in  their  "sovereign  capacity,  they  have,  in  many  instances,  con- 
ceded it  to  the  riparian  proprietor.  By  the  civil  law,  the  soil 
of  a  navigable  stream  covered  by  w^ater,  as  well  as  the  use  of 
the  stream,  belongs  to  the  public,  while  the  common  law  vested 
in  the  sovereign,  for  the  public  use,  the  title  to  the  soil  under 
all  waters  where  the  tide  ebbs  and  flows.  The  doctrine  of  the 
common  law,  together  with  its  test  of  navigability,  having 
been  found  unsuitable  to  the  wants  of  our  large  and  extensively 
watered  country  has,  in  a  majority  of  the  states,  been  super- 
seded by  rules  based  upon  the  civil-law  doctrine.  By  these 
rules  the  state  retains,  as  a  prerogative  right,  the  title  to  the 
soil  under  its  navigable  waters,  as  Avell  as  the  use  of  these 
waters,  which  it  holds  in  a  fiduciary  relation  for  the  public 
use.  This  right  is  usualh''  jealously  guarded  by  the  state,  and 
private  ownership  upon  navigable  waters  has  been  rigorously 
restricted  to  the  low^- water  line;^  yet  courts  of  high  authorit3'- 
and  undoubted  learning  have  not  hesitated  to  say  that  land 
under  navigable  water  ma}^  be  "held  by  private  ownership,  sub- 
ject to  the  public  rights  of  navigation  and  fishery ;  -  and  in 
many  instances  the  state  has  voluntarily  surrendered  to  the 
riparian  proprietor  all  its  rights  not  inconsistent  with  public 
navigation. 

"Where  the  rule  last  stated  is  permitted  to  obtain,  the  rights 
of  the  riparian  owner,  in  the  case  of  rivers,  are  regarded  as 
extending  to  the  center  or  thread  of  the  stream,*  ad  filium 
aqua;  and  the  same  rule  would  doubtless  apply  in  the  case  of 
lakes  and  ponds  of  circumscribed  area  and  regular  shore  lines.^ 

1  Goodwin    v.   Thompson,    15    Lea   State  v.  Canterbury,  28  N.  H.  195; 
(Tenn.),  209;    Lincoln    v,    Davis,    53   Cox  v.  Freedley,  33  Pa.  St.  124. 
Mich.  375.  *  Iii  Rice  v.  Rudiman,  10  Mich.  139, 

2  Hogg  V.  Beeman,  41  Ohio  St.  81.  in  speaking  of  Lake  Muskegon,  the 
This  case  referred  to  one  of  the  nav-  court,  after  stating  that  the  real  ques- 
igable  bays  of  Lake  Erie,  where  the  tion  is  not  whether  the  outward 
soil  was  claimed  under  a  grant  made  limits  of  private  ownership  in  the 
or  sanctioned  by  the  general  govern-  lake  can  be  defined  with  precision, 
nient.  says:    "But  if  the  water  continues 

3  Rice  V.  Monroe,  36  Me.  309 ;  Luce  so  shallow  as  to  render  the  lands  un- 
V.  Carnley,   24  Wend.   (N.  Y .)  451 ;   der  it  susceptible  of  beneficial  private 


SLiuEcr-MA'rrER.  19 

Jiut  while  tho  rule  is  unriucstionecl  that  grants  which  bound 
upon  a  river  or  stream  extend  to  tho  center  line,  provided 
there  be  no  limitation  in  the  terms  of  the  grant  itself,  it  is 
equally  well  settled  that  the  principle  docs  not  appl}'  to  grants 
bounding  on  the  great  inland  lakes  or  other  largo  bodies  of 
standing  fresh  water.  In  this  respect  a  new  rule  of  law  has 
been  cMiunciated,  differing  radically  from  that  laid  down  b}'  the 
common  law.  In  England,  vrhere  the  common  law  had  its 
origin,  there  were  no  great  inland  seas,  and  consequently  no 
precedent  can  be  found  in  the  jurisprudence  of  that  country 
which  determines  the  applicability  of  the  common-law  doc- 
trine of  riparian  rights  to  questions  of  this  character.  A  slight 
analogy  will  be  found  in  the  resemblance  of  the  great  lakes  to 
the  seas  which  surround  the  island  of  Great  Britain;  and  it  has 
been  said  that  this  would  seem  to  call  for  the  application  of 
the  same  principles  as  to  boundaries  which  were  applied  to 
lands  bordering  on  those  seas,  with  this  difference:  as  there 
is  no  periodical  ebb  and  flow  of  tide  in  the  waters  of  the  lakes, 
the  limit  should  be  a  low-Avater  instead  of  high-water  mark.^ 

Where  the  rule  prevails  that  the  title  of  a  riparian  owner 
on  a  navigable  stream  is  bounded  by  ordinary  high-water 
mark,  while  he  still  has  certain  rights  in  the  land  between 
high  and  low-water  mark,  yet  these  rights  are  peculiar  to 
himself,  and  cannot  be  sold  or  transferred  by  him  independ- 
ently of  a  conveyance  of  the  land  to  which  they  are  appur- 
tenant.- 

§  15.  Water.  It  has  been  said  to  be  vitally  essential  to 
the  public  peace  and  to  individual  security  that  there  should 
be  distinct  and  acknowledged  legal  owners  for  both  the  land 
and  water  of  the  country,^  and  that  property  in  water,  and  in 
the  use  and  enjoyment  of  it,  is  as  sacred  as  in  the  soil  over 

use  to  the  center  line  of  the  narrow  of    no    practical    importance  wliat- 

lake,  then  I  have  no   hesitation   in  ever." 

saying  that  I  think  the  rii)arian  own-  i  Lincoln  v.  Davis,  53  Mich.   375. 

ership  extends  to  such  center  line.  The  subject  will  receive  further  con- 

If  the  water  becomes  so  deep  as  to  sideration  in  treating  of  the  construc- 

render  the  lands  under  it  incapable  tion  of  grants. 

of  such  individual  use,  the  question  -Steele  v.  Sanchez,  72  Iowa,  65; 

of    ownership    beyond   wliere    it    is  Musser  v.    Ilershey,   42  Iowa,    350; 

available  for  such  purpose  becomes  PhiUips  v.  Rhodes,  7  Met.  322. 

as  barren  as    the  use  itself,  and  is  3  Gavitt  v.  Chambers,  3  Ohio,  497. 


20  CONTRACT   OF   SALE. 

which  it  flows.^  But  water,  from  its  peculiar  nature,  is  not 
susceptible  of  the  same  use  or  possession  as  land,  and  property 
therein  is  at  best  a  mere  usufructuary  right ;  and  in  every  case, 
where  of  sufficient  volume  and  depth,  such  right  is  subservient 
to  the  public  right  of  navigation.  If  the  water  is  not  navigar 
ble  it  is,  for  all  practical  purposes,  the  property  of  the  owner 
of  the  subjacent  soil;  and  in  any  event  he  is  entitled  to  every 
beneficial  use  of  the  same  which  can  be  exercised  with  a  due  re- 
gard for  the  common  easement.^  In  the  case  of  running  water 
the  riparian  proprietor  has  a  right  to  the  use  and  enjoyment 
of  it  and  the  benefits  to  be  derived  from  it  as  it  flows  through 
his  own  land ;  but,  as  this  right  is  common  to  all  through  whose 
land  it  flows,  it  follows  that  no  one  can  wholly  destroy  or  di- 
vert it  so  as  to  prevent  it  from  passing  to  the  property  below, 
or  wholly  obstruct  it  so  as  to  throw  it  back  upon  the  land  of 
the  one  above.'  In  the  case  of  standing  water,  as  well  as 
water  percolating  through  the  soil,  while  absolute  ownership, 
in  the  strict  sense  of  the  term,  is  of  course  impracticable,  yet 
the  right  of  property,  so  far  as  the  element  is  capable  of  bene- 
ficial use,  is  complete  in  the  owner  of  the  freehold,  free  from 
any  usufructuary  rights  in  others.^ 

But  while  property  in  water  can  be  regarded  in  no  higher 
light  than  a  mere  usufructuary  right,  such  right  is,  nevertheless, 
a  proper  and  valid  subject  of  sale  and  conveyance,  and  may 
be  disposed  of  quite  independently  of  the  soil  upon  which  it 
rests  or  over  which  it  flows.^  This  is  one  of  the  oldest  and 
best-recognized  principles  of  the  law  relating  to  waters,  find- 
ing frequent  reference  in  the  ancient  books  in  connection  with 

1  Lorman  v.  Benson,  8  Mich.  32 ;  below  the  part  he  retains,  each  gran- 
Wadsworth  v.  Tillotson,  15  Conn.  366.  tee  would  take  his  parcel  with  full 

2  Gary  v.  Daniels,  5  Met.  (Mass.)  rights  and  subject  to  corresponding 
236.  duties,   without   special    or  express 

"The  right  to  the  use  of  flowing  words.      Gary   v.    Daniels,    8    Met. 

water  is  not  an  easement;  it  is  insep-  (Mass.)  466;  Hill  v.  Newman,  5  Gal. 

ai-ably  connected  with  and  inherent  445 ;  Van  Sickle  v.  Haines,  7  Nev. 

in  the  land  and  passes  with  it.    The  249 ;    Wadsworth    v.    Tillotson,    15 

right  to  have  it  flow  over  the  land  of  Gonn.  366. 

another  is  more  in  the  nature  of  an  ^Hansoa  v.  McGue,   43  Gal.    308; 

easement,  although  not  strictly  such  Wilson  v.  New  Bedford,  108  Mass.  261. 

in  fact ;  and  where  a  proprietor  of  a  ^  Avon  Mfg.   Go.  v.   Andrews,  30 

large  tract  through  which  a  water-  Gonn.  476;  Bobo  v.  "Wolf,  18  Ohio  St. 

course  passes  sells  parcels  above  and  463;  Hines  v.  Robinson,  57  Me.  324. 


6UBJECT-MATTEE,  .  21 

gFcants  of  a  "pool,"  a  "gulph,''  as  well  as  of  a  "stream"  and 
"  part  of  a  river."  '  A  grant  of  a  stream  or  any  part  thereof,  or 
of  any  waters  by  fixed  boundaries,  can  only  be  made  by  a  deed 
duly  executed;-  yet  such  grant  may  bo  presumed,  as  in  other 
cases,  from  adverse  occupation  and  user  for  twenty  years.' 

By  the  civil  law  a  grant  of  any  easement  or  service,  under 
which  was  classed  the  use  of  streams  of  water,  a  right  to  the 
soil  passed,  so  far  as  was  necessary  to  the  enjoyment  of  the 
service;^  and  the  same  rule,  substantially,  seems  to  have  been 
adopted  by  the  common  law,'  although  no  interest  in  the  soil 
for  any  other  purpose  would  pass;  but  ordinarily  a  grant  of 
water  will  not  pass  the  soil  beneath,  probably  because  the  soil, 
not  being  named  and  not  being  incident  to  water,  cannot  be 
considered  as  embraced  by  that  word.^ 

Oil,  like  water,  is  not  the  subject  of  property,  except  while 
in  actual  occupancy.  It  is  a  fluid  possessing  substantially  the 
same  general  attributes  as  water,  and  therefore  cannot  be,  in 
any  just  sense  of  the  term,  the  subject  of  a  grant  as  of  a  cor- 
poreal interest.  In  this  respect  it  is  manifestly  different  from 
coal,  ores,  etc.  At  best,  a  grant  of  oil,  or  of  the  right  to  sink 
shafts  and  extract  same,  is  a  license,  and  governed  by  the  rules 
which  apply  to  licenses.' 

B}'-  the  laws  of  some  of  the  western  states,  ditclies  for  min- 
ing purposes  are  declared  real  property,  and  the  laws  of  these 
states  relative  to  the  sale  and  transfer  of  real  estate  are  made 
applicable  thereto.^ 

§  16.  Ice.  While  ice  is  only  water  in  a  congealed  state,  it 
nevertheless  partakes  largely  of  the  general  characteristics  of 
land,  and  is  capable  of  an  ownership  not  unlike  that  by  which 
land  is  held.  It  has  been  held  to  be  connected  with,  and  in 
the  nature  of,  an  accession  to  the  land,  being  an  increment 

iCo.  Lit.  5  a,  b;  Plowd.  Com.   154;  go  bi.  Com.  19. 

Bac.  Ab.  Grant.  H. ;  2  Blk.  Com.  19.  7  Dark  v.  Jolinston.  55  Pa.  St.  1G4. 

2  Billion  V.  Runnels,  2  N.  H.  255.  6  Whether  this  includes  the  regis- 

3Bucklin  v.  Truell,  54  N.  H.  123;  tration  of  deeds  or  conveyances  of 

White  V.  Chapin,  12  Allen  (Mass.),  such  ditches  may  be  a  question ;  but, 

516;  Steffy  v.  Carpenter,  37  Vt  41.  as  the  effect  or  operation  thereof  de- 

*Domat,  b.  1,  tit.  1,  sec.  1;  Brae-  pends  to  some  extent  on  registration, 

ton,  b.  4.  probablj-  it  does.     Gest  v.  Packwood 

51  Burr.  143;  23  Edw.  IV.  pi.  8,  (U.  S.  G.  Ct.  Oreg.  1888). 
p.  24. 


22  CONTKAOT   OF   SALE. 

arising  from  formations  over  it,  and  belonging  to  the  land 
properly,  as  being  included  in  it,  in  its  indefinite  extent  up- 
wards;^ and  such,  no  doubt,  must  be  the  character  accorded  to 
it  so  long  as  it  remains  in  place  upon  the  soil.^  In  this  condi- 
tion it  would  certainly  pass  as  a  portion  of  the  realty  upon  a 
sale  of  the  estate  to  which  it  is  attached. 

Ice  has  not  been  much  dealt  with  as  property,  however, 
until  very  modern  times,  and  for  this  reason  no  settled  body  of 
legal  rules  has  been  agreed  upon  concerning  it.  In  the  deter- 
mination of  questions  which  have  arisen  in  regard  to  it,  recourse 
has  usually  been  had  to  common-law  principles;  3^et  these  prin- 
ciples, in  the  main,  are  not  strictly  applicable.  So  far  as  the 
principles  of  the  common  law  go,  the}''  have  usually  if  not  uni- 
versally treated  nothing  movable  as  realty  unless  either  perma- 
nentl3''or  organicall}''  connected  with  the  land;  while  thetend- 
enc}'-  of  modern  authority,  especially  in  regard  to  fixtures,  has 
been  to  treat  such  property  according  to  its  purposes  and  uses  as 
far  as  possible.  In  its  essentials,  ice  is  onl}'  the  product  of  water 
which  has  become  fixed  bj^"  freezing;  in  this  condition  it  draws 
nothing  from  the  land,  and  if  removed  will  lose  its  identity  by 
melting.  It  has  no  organic  connection  wdth  the  land,  and  if 
severed  can  onl}""  be  joined  to  it  again  by  the  alternate  process 
of  melting  and  freezing.  It  is,  in  many  cases,  liable  to  dis- 
ruption and  consequent  loss  to  the  freeholder  by  being  swept 
away,  while  its  ephemeral  character  renders  it  incapable  of 
any  permanent  beneficial  use  as  part  of  the  soil,  and  it  attains 
its  greatest  value  onh?"  when  removed  from  its  original  position. 
Regarding  it,  therefore,  in  this  light,  and  with  reference  to  its 
uses  in  fact  as  a  commercial  commodity,  while  it  may  for  many 
purposes  justly  be  regarded  as  part  of  the  realty  when  resting 
in  place,  yet  a  sale  of  ice  already  formed,  as  a  distinct  and  spe- 
cific article,  may  properly  be  regarded  as  a  sale  of  personalty, 
whether  in  or  out  of  the  water.^ 

1  Washington  Ice  Co.  v.  Shortall,  3  Higgins  v.  Kusterer,  41  Mich.  318 ; 
101  111.  46 ;  State  v.  Pottmeyer,  33  and  see  Washington  Ice  Co.  v.  Short- 
Ind.  402.  all,  101  111.  46.     The  writer  has  been 

2  Hydraulic  Co.  v.  Butler,  91  Ind.  unable  to  find  any  direct  authority 
134;  Woolen  Mill  Co.  v.  Smith,  34  upon  the  question  of  the  validity  of 
Conn.  462;  Lorman  v.  Benson,  8  contracts  for  future  uses  or  interests 
Mich.  18 ;  Brown  v.  Brown,  30  N.  Y.  in  ice  not  yet  formed ;  and  whether 
519.  such  dealings  are  to  be  regarded  as 


SUBJECT-MATTEK.  23 

§  17.  Church  pews.  Inclosed  seats  iu  churches  do  not  ap- 
pear to  have  been  known,  according  to  the  modern  use  and 
idea,  until  long  after  the  llufonnation,  and  were  not  in  general 
use  until  about  the  middle  of  the  seventeenth  century.  Prior 
to  that  time  no  separate  seats  were  allowed  except  in  a  few 
instances,  and  the  body  of  the  church  was  common  to  all. 
They  constitute  a  subject  of  very  peculiar  ownership,  and  have 
given  rise  to  some  very  remarkable  decisions.  According  to 
the  English  idea  the  interest  of  a  pew-holder  is  of  an  incor- 
poreal nature  only  —  an  easement,  as  it  were  —  and  consists 
mainly  of  the  right  to  enter  and  occupy  during  the  celebra- 
tion of  divine  service.  In  this  country,  in  the  absence  of  a 
statute  declaring  their  status,  they  are  generally  considered  as 
partaking  of  the  nature  of  realty ;  ^  and  the  owner  has  been 
held  to  have  an  exclusive  right  of  possession  and  enjoyment, 
for  the  purposes  of  public  worship,  not  as  an  easement,  but 
by  virtue  of  an  individual  right  of  property.-  This  right, 
however,  even  though  it  be  regarded  as  an  interest  in  realt}', 
does  not  extend  to  the  fee,'  and  for  all  practical  purposes  is 
usufructuary  only.*  Though  it  be  not  an  easement  in  name, 
it  is  such  in  reality;^  for,  as  between  the  pew-owner  and  the 
church  corporation,  his  right  is  simply  one  of  occupancy,  in 
the  mode  prescribed  bv  the  rules  of  the  church  or  agreed  upon 
at  the  time  of  the  purchase.''  It  has  been  hekl  that  the  right 
to  a  pew  can  only  be  transferred  in  the  manner  provided  for 
the  transfer  of  real  estate;^  and  where  the  rights  conferred  are 
absolute  and  the  entire  property  vested  in  the  pew-owner, 
such  would  undoubtedly  be  the  rule;  yet,  as  a  matter  of  fact, 

leases  or  licenses,  or  executory  sales,  tist  Society  v.    Grant,   59  Me.   245 ; 

may  still  bo  considered  as  an  open  Kincaid's  Appeal,  GG  Pa.  St.  411. 

question.  *  Craig  v.  Presbyterian  Church,  88 

1  O'Hear  v.  De  Goesbriand,  33  Vt.  Pa.  St.  42 ;  Gay  v.  Baker,  17  Mass.  435. 
593;  Barnard  V.  Whipple,  29  Vt.  401 ;  »  Union  House  v.  Rovvell,  GG  Me. 
Sohierv.  Trinity  Churcli,  109  Mass.  1;  400;  Van  Houteu  v.  Ref.  Dutch 
Brumfield  v.  Carson,  33  Ind.  94;  Church,  17  N.  J.  Eq.  12G. 
Presbyterian  Church  v.  Andruss,  21  ^  Baptist  Societj-  v.  Grant,  59  Me. 
N.  J.  L.  325;  and  see  Church  v,  245;  Sohic-r  v.  Trinity  Church,  109 
Wells,  24  Pa.  St.  249.  Mass.  1. 

2  O'Hear  v.  De  Goesbriand,  33  Vt.  '  Barnard  v.  Whipple,  29  Vt.  401 ; 
593;  Church  v.  Andruss,  21  N.  J.  L.  and  see  Vielie  v.  Osgood,  8  Barb. 
325.  (N.  Y.)  130;  Bruuiaeld  v.  Carson,  33 

» Gay  V.  Baker,  17  Mass.  435 ;  Bap-   Ind.  94. 


24  CONTRACT    OF   SALE. 

the  old  system  of  pew  conveyances  has  almost  become  obso- 
lete. Deeds  are  no  longer  given  in  the  majority  of  churches, 
and  the  sittings  are  let  by  what  amounts  to  nothing  more  than 
a  mere  license,  differing  in  no  essential  particular  from  that 
employed  in  the  sale  of  seats  in  places  of  public  amusement. 

§  18.  Property  in  adverse  seizin  of  a  third  person. 
"  From  an  early  date,"  observes  Mr.  "Washburn,^  "  the  policy 
of  the  law  has  not  admitted  of  the  conveyance  by  any  one  of 
a  title  to  land  which  is  in  the  adverse  seizin  and  possession  of 
another ; "  and  this  has  always  been  one  of  the  fundamental 
principles  of  the  common  law.-  As  such  it  has  been  recognized 
and  enforced  in  all  of  the  older  states  of  the  Union,  and  deeds 
made  under  those  circumstances  have  in  many  instances  been 
declared  void.'  Such  deeds  were  considered  as  passing  no 
tille,  but  simply  as  the  transfer  of  a  mere  right  of  action ;  and, 
being  in  violation  of  the  early  laws  against  champerty  and 
maintenance,  the  courts  refused  to  sustain  them.^  This  doc- 
trine prevailed  for  many  years,  and  still  obtains,  though  in  a 
less  obnoxious  form,  in  a  few  of  the  states;^  but  even  in  states 
where  such  conveyances  are  discouraged,  they  have  been  held 
to  be  good  against  the  grantor  and  all  other  persons  except 
the  adverse  possessor.^  The  doctrine,  however,  does  not  find 
favor  in  the  United  States,'  and  is  fast  becoming  obsolete.  It 

13  Wash.  Real  Prop.  (4th  ed.)  329.  Tlie   repeated  statutes    which  were 

2  Co.  Lit.  214;  4  Kent's  Com.  446.  passed  in  the  reigns  of  Edw.  I.  and 

3  Jackson  v.  Dement,  9  Johns.  Edw.  III.  against  champerty  and 
{N.  y.)  55 ;  Thurman  v.  Cameron,  24  maintenance,  arose  from  the  embar- 
Wend.  (N.  Y.)  87;  Early  v.  Garland,  rassments  which  attended  the  ad- 
13  Gratt.  (Va.)  1 ;  Michael  v.  Nutting,  ministration  of  justice  in  those  tur- 
1  Ind.  291 ;  Dexter  v.  Nelson,  6  Ala.  bulent  times  from  the  dangerous 
68;  Ring  v.  Gray,  6  B.  Mon.  (Ky.)  influence  and  oppression  of  men  in 
368;  Way  v.  Arnold,  18  Ga.  181;  power.  See  4  Kent's  Com.  477. 
Brinley  v.  Whiting,  5  Pick.  (Mass.)  5  See  Sohier  v.  Coffin,  101  Mass. 
348;  Betsey  v.  Terrence,  34  Miss.  132;  179;  Jones  v.  Monroe,  32  Ga.  188. 
Heirs  V.  Kidd,  3  Ohio,  541;  Dame  v.  6  University  v.  Joselyn,  21  Vt.  52; 
Wingate,  12  N.  H.  291.  Abernathy  v.  Boazman,  24  Ala.  189; 

*  The  ancient  policy,  which  prohib-  Hamilton  v.  Wright,  37  N.  Y.  502. 

ited  the  sale  of  pretended  titles,  and  'Roberts  v.  Cooper,  20  How.  (U.  S.) 

held  the  conveyance  to  a  third  per-  467 ;  Cresenger  v.    Welch,   15   Ohio, 

Bon  of  lands  held  adversely  at  the  156;  Drennan  v.  Walker,  21  Ark.  539; 

time  to  be  an  act  of  maintenance,  Stewart  v.  McSweeney,  14  Wis.  468; 

was  founded  upon  a  state  of  society  Carder  v.  McDermott,  13  Tex.  546. 
which  does  not  exist  in  this  country. 


SUBJECT-MATTER.  25 

has  lost  much  of  its  force  where  still  administered;  and  in  most 
of  the  states,  while  the  earlier  decisions  may  seem  to  have 
adopted  it  as  part  of  the  common  law  of  the  state,  it  has  been 
swept  away  by  express  statutor}^  enactment.  Under  these 
statutes  any  one  claiming  title  to  land,  although  out  of  posses- 
sion, and  notwithstanding  there  may  be  an  actual  adverse  pos- 
session may  sell  and  convey  the  same  as  though  in  the  actual 
possession,  and  his  deed  will  give  the  grantee  the  same  right 
of  recovery  in  ejectment  as  if  the  grantor  had  been  in  the 
actual  possession  when  ho  conveyed.^ 

Where  the  doctrine  is  still  recognized  a  deed  of  land  of 
which  the  grantor  is  disseized  is  not  wholly  void.  It  is  good 
as  between  the  parties,  and  it  gives  to  the  grantee  the  right  to 
recover  possession  to  his  own  use  in  the  name  of  the  grantor. 
So,  too,  while  it  may  be  that  no  title  passes  which  Avill  support 
a  real  action  in  the  name  of  the  grantee,  or  give  him  a  right 
of  entry  against  the  disseizor  or  those  claiming  under  hira,^ 
yet  it  is  settled  that,  if  the  grantee  obtains  possession  of  the 
land,  he  can  unite  that  possession  to  his  title  acquired  by  such 
deed,  and  so,  by  way  of  estoppel  and  to  prevent  a  circuity  of 
action,  defeat  a  real  action  brought  by  the  disseizor  to  recover 
the  same.  The  disseizin  is  terminated  by  the  entry  and  occu- 
pation of  one  who  claims  title  by  deed  from  the  true  owner, 
and  not  adverselv,  and  the  latter  as  well  as  all  those  from 
whom  by  successive  deeds  the  title  is  derived  are  estopped  by 
their  several  deeds  to  deny  that  title.  So,  although  the  deed 
gives  to  the  grantee  no  right  of  entry,  because  such  right  is 
not  assignable  at  common  law,  yet  if  he  enters  and  obtains 
possession,  even  against  the  wishes  of  the  party  in  possession, 
the  title  is  thereby  made  good  against  the  latter,  and  cannot 
be  disputed  in  an  action  which  puts  the  title  directly  in  issue. 
In  an  action  of  trespass  the  grantee  may  not  be  able  to  justify 
such  entry,  but  it  does  not  follow  for  that  reason  that  he  has 
no  defense  to  a  real  action.  He  does  not  by  his  tortious  entry 
forfeit  his  right  to  recover  possession  in  the   name  of  the 

1  Chicago  V.  Vulcan  Iron  Works,    4G8 ;   Roberts  v.    Cooper,    20    IIow, 
93111.  222;  Crane  v.  Reeder,  21  Mich.    (U.  S.)  467. 

82;  Stewart  v.  McSweeney,  14  Wis.       -Land  v.  Darling,  7  Allen  (Mass.), 

205. 


26  CONTKAOT   OF   SALE. 

grantor,  and  because  he  has  this  right  the  demandant  is  not 
allowed  to  set  up  his  claim  in  a  real  action  against  him.^ 

§  19.  Fraiicliises.  A  franchise,  in  its  original  form,  was  a 
roval  privilege  or  prerogative  of  the  king,  subsisting  in  the 
subject  by  a  grant  from  the  crown;  and  except  that  the  grant 
comes  from  the  people  in  their  sovereign  capacity,  the  general 
features  have  not  been  changed  in  this  country.  The  term  is 
ordinarily  applied  to  grants  for  the  maintenance  of  bridges, 
w^ays  and  ferries.^ 

1  See   Wade   v.    Lindsey,  6   Met.  2  Under  the  English  law  the  title 

(]\Iass.)  407;  Farnum  v.  Peterson,  111  included  a  large  number  of  subjects 

Mass.  148 ;  Eawson  v.  Putnam,   128  wholly  unknown  in  America,  as  f or- 

Mass.  553.  est,  chase,  free-warren,  fishery,  etc. 


SDBJECT-MATTEB. 


27 


Art.  IL     The  Estate. 


11. 

Estates  at  will  and  by  suffer- 

ance. 

12. 

Joint  estates. 

13. 

Estates  by  entirety. 

14. 

Easements. 

15. 

License. 

16. 

Contingent  interests  and  es 

tates. 

17. 

Powers. 

§  1.  Definition. 

2.  Estates  at  common  law. 

3.  Estates  under  the  statute. 

4.  Fee-simple. 

5.  Fee-tail. 

6.  Estates  for  life. 

7.  Dowei". 

8.  Curtesy. 

9.  Homesteads. 

10.  Estates  for  years. 


§  1.  Definition.  An  estate^  has  been  defined  as  the  degree, 
quantity,  nature  and  extent  of  interest  which  a  person  has  in 
real  property" ;-  and  in  every  sale  of  land  direct  reference  is  had 
to  the  estate  to  be  conveyed,  whether  the  same  receives  spe- 
cific mention  or  not;  and  this  estate,  unless  limited  b}-  express 
words,  is  usually  held  to  be  all  that  the  vendor  possesses.  He 
cannot  convey  a  greater  estate,  no  matter  what  language  may 
be  used ;  but  should  he  assume  so  to  do,  and  warrant  the  in- 
terest thus  purported  to  be  sold,  he  will  be  estopped  to  deny 
that  he  did  not  so  possess  the  same  if  at  any  subsequent  period 
he  should  perchance  acquire  it. 

§  2.  Estates  at  common  law.  The  main  ingredients  of  es- 
tates are  classified  as  quantity  and  quality.  Quantity  has  ref- 
erence to  the  duration  and  extent  of  estates,  and  occasions 
their  primary  division  into  such  as  are  freehold  '  and  such  as 
are  less  than  freehold.  The  former  has  been  described  as  an 
interest  in  lands  or  other  real  property,  held  by  a  free  tenure,* 

1  In  Latin,  status,  because  it  signi-  s  This  was  called,  in  the  ancient 
fies  the  condition  or  circumstance  in  books,  liberum  tenementum,  frank 
which  the  owner  stands  with  regard  tenement,  or  freehold,  and  was  for- 
to  his  property.  merly  described  to  be  such  an  estate 

2  1  Bouv.  Law  Diet.  539.  Tlie  term  as  could  only  be  created  by  livery  of 
is  also  used  in  a  general  and  exten-  seizin,  a  ceremony  similar  to  the  in- 
sive  sense  as  applied  to  lands  and  vesture  of  the  feudal  law.  Since  the 
houses  —  as,  "my  estate  at  Blank,"  introduction  of  modern  couveyanc- 
etc. ;  and  in  the  case  of  decedents  this  ing  this  definition  has  of  course  no 
sense  has  acquired  a  legal  significa-  application. 

tion,  including  personal  as  well  as  ■»  Upon    the    introduction    of    the 

real  property.     The  one  given  in  the  feudal  law,  all  the  lands  in  England 

text,  however,  is  its  true  technical  became  holdcn  eitlicr  by  a  free  or  a 

meaning.  base  tenure.    The  touaut  who  held 


28  CONTRACT    OF   SALE. 

for  the  life  of  the  tenant  or  that  of  some  other  person,  or  for 
some  uncertain  period.  The  test  seems  to  lie  in  its  indeter- 
minate duration;  for  if  the  utmost  period  of  time  to  which  an 
estate  can  last  is  fixed  and.  determined,  it  is  not,  under  the 
common-law  rules,  an  estate  of  freehold,^  Quality  refers  to 
the  tenure  by  which  the  estate  is  held,  and  to  the  manner  of 
its  enjoyment,  as  absolutely,  jointly,  in  common,  etc.  Free- 
holds are  themselves  divided  into  estates  of  inheritance  and 
estates  not  of  inheritance;  the  former  comprising  estates  of 
unqualified  ownership  or  unlimited  duration,  the  latter  estates 
for  life,  or  those  of  indefinite  duration  which  may  endure  for 
a  life. 

Allodial  titles  being  unknown  to  the  common  law,  the 
largest  estate  which  a  subject  could  possess  in  land  was  termed 
a  fee^  or,  as  usually  written,  a  fee-simple.  This  term  was  de- 
rived from  the  feudal  system,  and  originally  signified  the 
tenure  by  which  the  land  was  held.  In  itself  it  denoted  a  full 
power  of  disposition  during  the  life-time  of  the  tenant  and  of 
descent  to  his  heirs  upon  his  death.  But  the  British  land  sys- 
tem was  always  highly  complex  and  very  artificial,  and  the 
fee  was  hedged  about  with  a  large  number  of  what  to  us  now 
seems  a  bewildering  maze  of  limitations,  conditions  and  re- 
strictions, amid  the  subtilties  of  which  even  the  astute  com- 
mon-law conveyancer  often  floundered  in  helpless  confusion. 
The  fee  was  divided  into  fee-simple  absolute,  fee-simple  condi- 
tional and  fee-simple  qualified,  or  base  fee,  or,  as  sometimes 
called,  a  determinable  fee.-  Flowing  from  these  estates  was 
an  almost  interminable  number  of  reversions,  remainders,  etc., 
in  most  cases  very  complex,  and  all  bearing  evidence  of  the 

by  a  free  tenure  had  always  a  right  i  Thus,  if  lands  are  conveyed  to  a 
to  the  enjoyment  of  the  land  for  his  man  and  his  heirs  forever,  or  for  the 
life  at  least,  and  could  not  be  dispos-  term  of  his  natural  life,  or  until  he  is 
sessed,  even  for  the  non-payment  of  married,  he  has  an  estate  of  freehold ; 
his  rent  or  the  non-performance  of  but  if  lands  are  limited  to  a  man  for 
his  services ;  whereas  the  tenant  who  five  hundred  years,  or  for  ninety- 
held  in  villenage  might  be  turned  nine  years,  if  he  shall  so  long  live,  he 
out  at  the  pleasure  of  his  lord ;  the  has  not  an  estate  of  freehold.  2  Bl. 
person    holding    by    a  free  tenure.  Com.  386. 

therefore,  was  called  a  freeholder,  '-'  The    principle    is     still    retained 

because  he  might  maintain  his  posi-  under  what  is  termed  a  conditional 

tion  against    his   lord.    See   Cruise  limitation. 
Dig.  tit.  I,  s.  16. 


8UBJECT-MATTEK,  29 

Lighost  def^reo  of  legal  ingenuity  in  their  several  inventors. 
Notably  among  the  devices  contrived  to  perpetuate  power  and 
wealth  in  the  hands  of  certain  families  was  the  system  of  es- 
tates-tail, which  almost  wholly  restrained  the  power  of  alien- 
ation, and  the  land  continued  to  })ass  to  successive  heirs,  in  the 
order  named  by  the  donor,  until  default  of  issue  caused  a  re- 
verter. Estates  were  limited  upon  estates,  apparently  without 
end,  and  remainders  were  ci^eated  upon  remainders  for  the 
benefit  of  generations  far  in  the  future. 

The  greatest  nicety  was  observed  in  the  creation  of  all  com- 
mon-laAV  estates,  of  whatever  kind  and  nature,  and  great  stress 
was  laid  upon  the  employment  of  the  language  by  which  they 
were  raised. 

§  3.  Estates  uiuler  the  statute.  In  most  of  the  states  the 
nature  and  quality  of  estates  in  land  have  been  formall}'  de- 
fined and  fixed  by  statute,  and  while  in  a  majority  of  in- 
stances the  common-law  nomenclature  has  been  retained,  the 
common-law  incidents  have  generally  been  greatly  modified 
or  abolished.  Estates  of  inheritance  and  for  life  are  usually 
classed  as  freeholds;  while  estates  for  years,  without  regard  to 
the  period  of  duration,  are  denominated  chattels  real,  and  sub- 
jected to  chattel  incidents.^  Estates  at  will  or  by  sufferance  are 
generally  regarded  as  mere  chattel  interests.  With  respect  to 
the  time  of  their  enjoyment,  estates  are  said  to  be  in  possession 
or  expectancy  — the  former  being  where  the  owner  has  an  im- 
mediate right  to  the  land,  the  latter  where  the  right  to  pos- 
session is  postponed  to  a  future  period.  Estates  in  expectancy 
are  themselves  divided  into  future  estates  and  reversions.  A 
future  estate  is  an  estate  limited  to  commence  in  possession  at 
a  future  day,  either  without  the  intervention  of  a  precedent 
estate  or  on  the  determination,  by  lapse  of  time  or  otherwise, 
of  a  precedent  estate  created  at  the  same  time.  "When  a 
future  estate  is  dependent  upon  a  precedent  estate  it  is  called 
a  remainder,  and  may  ordinarily  be  created  and  transferred 
by  that  name,  lleversions  remain  as  at  common  law,  and  are 
the  residue  of  estates  left  in  the  grantor  or  his  heirs,  commenc- 
ing in  possession  on  the  determination  of  particular  estates 
granted. 

iSee2  Bl.  Com.  386;  Brewster  v.  ler,  1  Md.  Ch.  36;  Chapmaa  v.  Gray, 
Uill,  1  N.  H.  350 ;  Spangler  v.  Stan-    15  Mass.  439. 


30  CONTRACT   OF   SALE. 

Entailed  estates,  with  all  their  incidents,  have  been  generally- 
abolished,  and  as  a  rule  every  future  estate  is  void  in  its  crea- 
tion which  suspends  the  absolute  power  of  alienation  for  a 
longer  period  than  during  the  continuance  of  two  lives  in  being 
at  the  creation  of  the  estate,^  except  that  a  contingent  remain- 
der in  fee  may  be  created  on  a  prior  remainder  in  fee,  to  take 
effect  in  the  event  that  the  persons  to  whom  the  first  remain- 
der is  limited  shall  die  under  the  age  of  twenty-one  years,  or 
upon  any  contingency  by  which  the  estate  of  such  persons 
may  be  determined  before  they  attain  their  full  age.^  The 
limitation  of  successive  estates  for  life  is  no  longer  permitted 
unless  to  persons  in  being  at  the  creation  thereof;  and  ordi- 
narily, when  a  remainder  shall  be  limited  on  more  than  two 
successive  estates  for  life,  all  the  life  estates  subsequent  to 
those  of  the  two  persons  first  entitled  thereto  are  void,  and 
upon  the  death  of  those  persons  the  remainder  takes  effect  in 
the  same  manner  as  if  no  other  life  estate  had  been  created. 
Usually  no  remainder  can  be  created  upon  an  estate  for  the 
life  of  any  other  person  than  the  grantee  of  such  estate,  unless 
such  remainder  be  in  fee;  nor  can  any  remainder  be  created 
upon  such  an  estate  in  a  term  for  years,  unless  it  be  for  the 
whole  residue  of  the  term. 

§  4.  Fee-simple.  Freehold  estates  of  inheritance  are  usually 
denominated  estates  in  fee  —  a  name  borrowed  from  the  ancient 
land  system  of  England,  but  of  far  greater  import  here  than 
there.  It  signifies  an  absolute  estate  of  inheritance,  clear  of 
any  restrictions  to  particular  heirs,  and  is  the  largest  estate 
and  most  general  interest  that  can  be  enjoyed  in  land,  being 
the  entire  property  therein,  and  confers  an  unlimited  power  of 
alienation.^  The  estate  is  wholly  comprised  in  the  word  "  fee," 
although  it  is  customary  to  describe  it  as  a  "fee-simple,"  and 
in  some  instances  as  " fee-simple  absolute."  It  has  been  said, 
that  the  term  "simple"  has  been  added  for  the  purpose  of 
showing  that  the  estate  is  descendible  to  the  heirs  generally, 
without  restraint  to  the  heirs  of  the  body,  etc.;*  and  possibly 

^  Such  power  of  alienation  is  sus-  real  estate  has  been  granted  to  lit- 

pended  when  there  are  no  persons  in  erary  or  charitable,  corporations  for 

being  by  whom  an  absolute  fee  in  their  sole  use  and  benefit, 

possession  can  be  conveyed.  ^Haynes  v.  Bourn,  42  Vt.  686. 

2  An  exception  is  also  made  when  ^1  Prest.  Est.  420. 


SUBJECT-MATTEE.  31 

if  tho  American  estate  were  identical  Avith  its  English  proto- 
type this  explanation  would  have  signiiicance;  but  as  a  matter 
of  fact  as  well  as  law  the  addition  of  the  word  "simple  "  adds 
nothing  to  the  force  or  comprcliensivcness  of  tho  term.^ 

The  creation  of  the  estate  was  formerly  very  technical,  and 
was  raised  only  by  a  grant  to  a  man  and  his  heirs;  hence,  as 
Littleton-  quaintly  observes,  "  if  a  man  would  purchase  lands 
or  tenements  in  fee-simple,  it  behooveth  him  to  have  these 
words  in  his  purchase;  to  have  and  to  hold  to  him  and  his 
heirs;  for  these  words  (his  heirs)  make  the  estate  of  inher- 
itance." For  many  years  tlie  rule  as  stated  by  Littleton  pre- 
vailed in  the  United  States;  but  more  recently  the  statute  has 
abrogated  the  common-law  rule,  and  every  estate  in  lands 
which  may  be  granted,  conveyed  or  devised  is  deemed  a  fee- 
simple  or  estate  of  inheritance,  if  a  less  estate  is  not  limited 
by  express  words  or  created  by  construction  or  operation  of 
law,' 

§  5.  Fee-taiL  Donations  of  land  were  originally  simple  and 
pure,  without  any  condition  or  modification  annexed  to  them; 
and  the  estates  created  by  such  donations  were  held  in  fee- 
simple.  In  course  of  time,  however,  it  became  customary  to 
make  donations  of  a  more  limited  nature,  b}''  which  the  gift 
was  restrained  to  some  particular  heirs  of  the  donee,  exclusive 
of  others;  as,  to  the  heirs  of  a  man's  body,  by  which  onl}"  his 
lineal  descendants  were  admitted,  in  exclusion  of  collateral 
heirs;  or  to  the  heirs  male  of  his  body,  in  exclusion  both  of 
collateral  heirs  and  lineal  female  heirs.*    These  estates  were 

^  Jecks  V.  Toussing.  45  Mo.  1G7.  tates.    But  the  propensity  which  then 
2  Lit.  §  1,  ch.  1,  b.  1.  provailed  to  favor  a  Hberty  of  aUena- 
3Leitcr  v.    Sheppard,  85  HI.  2-12;  tiou  induced  tho  courts  of  justice  to 
Fash  V.  Blake,  38  111.  863.     Where  a  construe  limitations  of  this  kind  in  a 
deed  purports  to  convey  all  the  in-  very  liberal  manner;  and,  instead  of 
terest  and  title  of  the  grantor  it  will  declaring  that  these  estates  were  de- 
be  given  effect  accordingly.    Thomas  scendible  to  those  heirs  only  who  were 
V.  Chicago,  55  111.  403.  particularly  described  in  the  grant, 
<  These  limited  donations  seem  to  according  to  the  manifest  intention 
have  come  into  use  in  England  about  of  the  donors  and  tho  strict  principles 
the  end  of  tho  reign  of  Henry  II.,  and  of  the  feudal  law,  and  that  tho  do- 
wore  probably  introduced  for  the  pur-  nees  shouhl  not  in  any  case  be  enabled 
pose  of  restraining  the  power  of  alien-  by  their  alienation  to  defeat  the  suc- 
ation,  which  at  that  time  had  become  cession  of  those  who  were  mentioned 
general  in  tho  case  of  fee-simple  es-  in  the  gift,  or  the  donor's  right  of  re- 


32  CONTUACT   OF   SALE. 

known  as  estates  in  fee-tail,  being  estates  of  inheritance,  bat 
descendible  only  to  some  particular  heirs  of  the  person  to  whom. 
it  was  granted,  and  not  to  his  heirs-general.^  The  object  was 
to  preserve  great  landed  properties  intact  to  particular  families 
by  restricting  the  power  of  alienation;  and  the  estate  continued 
so  long  as  there  was  posterity  in  the  regular  order  of  descent, 
but  determined  as  soon  as  it  reached  an  owner  who  died  with- 
out issue. 

One  of  the  marked  characteristics  of  American  law  is  its  ab- 
horrence of  perpetuities  and  of  all  devices  calculated  to  place 
restraints  upon  free  alienation.  This  early  became  manifest  in 
respect  to  estates-tail ;  and  while  the  estate  cannot  be  said  to 
be  altogether  abolished,  it  has  been  so  modified  that  where 
land  is  given  to  one  and  the  heirs  of  his  body  begotten  the  en- 
tail extends  only  for  one  degree.  Thus,  the  donee  would  take 
a  life  estate,  while  the  second  taker  would  have  the  remainder 
in  fee. 

§  6.  Estates  for  life.  An  estate  for  life  is  a  freehold  inter- 
est in  lands,  both  at  common  law  and  under  the  statute,  the 
duration  of  which  is  confined  to  the  life  or  lives  of  some  par- 
ticular person  or  persons,  or  to  the  happening  or  not  happen- 
ing of  some  uncertain  event.-  It  confers  upon  the  tenant  the 
possession  and  enjoyment  of  the  land  during  the  continuance 
of  his  estate,  while  the  absolute  property  and  inheritance  of 
the  land  itself  is  vested  in  some  other  person.     Such  estates 

verter,  they  had  recourse  to  an  ingen-  monly  known  as  the  statute  De  Bonis, 
ious  device  taken  from  the  nature  of  which  provided  that  the  will  of  the 
a  condition.  The  estate  was  regarded  giver,  according  to  the  form  in  the 
as  a  conditional  fee;  that  is,  it  was  deed  manifestly  expressed,  should  be 
held  to  be  granted  to  a  man  and  the  observed,  "  so  that  they  to  whom  a 
heirs  of  his  body  on  condition  that  he  tenement  was  so  given  under  condi- 
had  such  heirs ;  and  as  soon  as  issue  tion  sliould  not  have  power  to  alien 
was  born  the  estate  became  absolute  the  same  tenement,  whereby  it  should 
by  the  performance  of  the  condition,  remain  after  the  death  of  the  donees 
while  the  right  of  alienation  might  to  their  issue,  or  to  the  donor  or  his 
be  freely  exercised.  From  this  mode  heir  if  issue  failed."  See  Cruise,  Dig. 
of    construing    conditional  fees  the   tit.  II. 

purposes  for  which  they  were    in-       i  It  is  called  an  estate-tail,  or  a  fee- 
tended  were  completely  frustrated;    tail,  from  its  similarity  to  the /eorfum 
and,  therefore,  the  nobility,  in  order    talliatuin,    which    appears    to   have 
to  perpetuate    their    possessions    in   been  well  known  at  that  time, 
their  own  families,  procured  the  stat-       -  Cruise,  Dig.  tit.  3. 
ute  of  Westm.   2,   13  Edw.  I.,  com- 


SUBJECT-MATTER.  60 

are  created  in  two  ways:  either  expressly,  as  by  deed  or  other 
legal  assurance,  or  by  the  operation  of  some  principle  of  law;^ 
but  the  incidents  are  much  the  same  in  either  case.  Whenever 
lands  are  conveyed  to  a  man  for  the  term  of  his  own  life  he 
is  called  tenant  for  life;  but  wiiere  he  holds  for  the  life  of  an- 
other he  is,  in  technical  parlance,  tenant  pour  auter  vie;  and  in 
like  manner  where  a  person  having  an  estate  for  his  own  life, 
either  by  express  limitation  or  by  the  operation  of  some  prin- 
ciple of  law,  grants  it  over,  the  grantee  becomes  the  tenant 
potir  aide?'  vie. 

Estates  for  life  will  generally  endure  as  long  as  the  life  or 
lives  for  which  the}'  are  granted;  but  there  are  estates  for  life 
which  may  determine  upon  future  contingencies  before  the 
death  of  the  person  to  whom  they  are  granted.  Thus,  if  an 
estate  be  given  to  a  woman  so  long  as  she  remains  single,  or 
during  her  coverture,  or  as  long  as  the  grantee  shall  dwell  in 
a  particular  place,  etc., —  in  all  these  cases  the  grantees  have 
estates  for  life,  determinable  on  the  happening  of  uncertain 
events. 

Every  tenant  for  life  has  a  right  to  the  full  use  and  enjoy- 
ment of  the  land,  and  of  all  its  annual  profits  during  the  con- 
tinuance of  the  estate.  He  also  has  the  power  of  alienating 
his  whole  estate  and  interest,-  or  of  creating  out  of  it  any  less 
estate  than  his  own,  unless  restrained  by  positive  condition; 
and  while  any  attempt  to  create  a  greater  estate  than  his  own 
must  necessarily  be  void,  upon  the  principle  that  a  man  cannot 
convey  that  which  he  does  not  possess,  yet  his  deed  will  never- 
theless be  operative  and  effective  to  pass  whatever  estate  or 
interest  he  has.* 

^  Stewart  v.  Clark,  13  Met.  (Mass.)  if  a  tenant  for  life  attempted  to  con- 

79.  Tey  a  greater  estate  than  he  possessed, 

2Roseboom  v.VanVechten,  5  Denio  whereby  the  estate  in  remainder  or 

(N.  Y.),  414.  the  reversion  was  divested,  such  con- 

3  This  is  directly  the  reverse  of  the  veyance  was  held  to  operate  as  a  for- 

ancient  doctrine,  for  fealty  was  the  feiture  of  the  life  estate.      In   the 

main  tenure  by  which  these  estates  United  States  this  matter  is  now  very 

were  formerly  held ;  hence  they  were  generally  regulated  by  rtatutes  which 

for  many  years  considered  in  many  provide  that  no  deed  of  a  tenant  for 

respects  as  strict  feuds,  and  forfeit-  life  or  years  shall  work  a  forfeiture, 

ablefor  many  of  the  causes  for  which  or  shall  operate  to  pass  a  greater  es- 

feuds  were  formerly  forfeited.  Hence  tate  than  he  could  lawfully  convey. 
8 


34  CONTRACT   OF   SALE. 

§  7.  Bower.  Among  the  life  estates  dcrirecl  from  the  com- 
mon law  is  that  which  a  widow  acquires  in  a  certain  portion 
of  her  husband's  lands,  after  his  death,  for  her  support  and 
maintenance.  This  estate  is  known  as  dower,  and  is  said  to 
have  been  derived  from  the  Germans,  among  whom  it  was  a 
rule  that  a  virgin  should  have  no  marriage  portion,  but  that 
the  husband  should  allot  a  part  of  his  property  for  her  use  in 
case  she  survived  him.^  From  an  early  day  this  seems  to  have 
been  a  part  of  the  common  law  of  England,  receiving  frequent 
mention  in  the  royal  charters  and  concessions,  and  at  Little- 
ton's time  had  assumed  much  the  same  condition  that  it  re- 
tains to-day;  for,  in  speaking  of  it,  he  says:  "  Tenant  in  dower 
is  where  a  man  is  seized  of  certain  lands  and  tenements  in  fee- 
simple,  fee-tail  general,  or  as  heir  in  special  tail,  and  taketh  a 
wife,  and  dieth;  the  wife,  after  the  decease  of  her  husband, 
shall  be  endowed  of  a  third  part  of  such  lands  and  tenements 
as  were  her  husband's  at  any  time  during  the  coverture;  to 
have  and  to  hold  the  same  to  the  wife  in  severalty,  by  metes 
and  bounds,  for  terra  of  her  life;  whether  she  hath  issue  by 
her  husband  or  no,  and  at  what  age  soever  the  wife  be,  so  as 
iliat  she  be  past  the  age  of  nine  years  at  the  time  of  the  death 
of  her  husband."  ^  But  the  common-law  right  of  dower  no 
longer  exists  in  the  United  States,  the  rights  of  the  surviving 
wife  in  the  real  estate  of  her  deceased  husband  being  those 
created  by  statute  alone,  and  whatever  incidents  may  have  at- 
tached to  the  ancient  estate  have  either  been  swept  away 
or  incorporated  in  the  rights  derived  under  the  statute.  Ko 
uniform  measure,  either  as  to  quantity  or  quality,  has  been 
adopted;  but  in  the  main  the  estate  conferred  upon  the  widow 
conforms  to  that  of  the  common  law,  and  consists  of  the  use, 
during  her  natural  life,  of  one-third  ])art  of  all  the  lands 
whereof  her  husband  was  seized  of  an  estate  of  inheritance 
at  any  time  during  the  marriage. 

During  the  life-time  of  the  husband  the  wife  has  only  an 
incl.oate  right,  Avhich  is  not  an  estate  in  the  land,  but  a  mere 
contingent  interest  that  attaches  to  the  land  as  soon  as  there 
is  the  concurrence  of  marriage  and  seizin.^  This  interest  be- 
comes fixed  and  certain  upon  the  death  of  the  husband,  and 

1  Cruise,  Dig.  tit.  VL  3  Witthaus  v.   Schack,   105  N.  Y. 

2  Litt.  §  36.  832. 


SUBJECT  MATPER.  35 

after  assignment  of  dower  develops  into  a  freehold  estate  in 
tlio  land.'  During  coverture  the  wife's  inchoate  right  of 
dower  is  incapable  of  being  transferred  or  released,  except  to 
one  who  has  already  had,  or  by  the  same  instrument  acquires, 
an  independent  interest  in  the  land.'-  The  right  is  not  such  an 
estate  as  can  be  leased  or  mortgaged;'  neither  can  a  married 
woman  bind  herself  personally  by  a  covenant  or  contract  af- 
fecting her  right  of  dower  during  the  marriage.  Hence,  a  deed 
executed  by  husband  and  wife  with  covenants  of  warranty 
does  not  estop  the  wife  from  setting  up  a  subsequently-ac- 
(juired  title  to  the  same  lands.^  During  the  marriage,  no  act 
of  the  husband  alone  can  bar  or  extinguish  this  interest;  but  a 
woman  may  be  barred  of  her  dower  by  jointure,  settled  upon 
her  before  marriage,  or  by  joining  with  her  husband  in  a  deed 
of  conveyance,  properly  acknowledged.  The  release  of  dower 
which  a  woman  makes  by  joining  with  her  husband  in  a  con- 
veyance of  his  land  operates  against  her  only  by  estoppel, 
however,  and  can  be  taken  advantage  of  only  by  those  who 
claim  under  that  conveyance;^  and  if  the  conveyance  is  void 
or  ceases  to  operate,  she  is  again  clothed  with  the  right  which 
she  has  released.  The  inchoate  right  of  dower,  therefore,  not 
being  the  subject  of  a  conveyance  in  any  of  the  usual  forms 
by  which  real  property  is  transferred,  and  the  doctrine  of 
estoppel  by  which  subsequently-acquired  titles  are  made  to 
inure  to  the  benefit  of  former  grantees  being  inapplicable,  it 
follows  that  the  grantee  or  mortgagee  claiming  under  an  in- 
strument executed  by  a  married  woman  during  coverture 
acquires  no  title  or  interest  in  the  dower  of  the  grantor  or 
niortirajror  when  the  estate  becomes  absolute,  whether  dower 
has  been  assigned  or  not.'^  But  in  all  cases  where  the  wife 
unites  with  her  husband  in  a  conveyance  properly  executed 
l)y  her,   which   is   effectual  and  operative  against  him,  and 

lElmdorf  v.  Lockwood,  57  N.  Y.  *  Jackson     v.     Vanderheyden,     17 

'622;  Johnson  V.  Montgomery,  51  III.  Jolms.  (N.  Y.)  1C7. 

185.  s^Mallony  V.  Horan,  49  N.  Y.  Ill; 

2  Robinson  v.  Bates,  3  Met.  (Mass.)  Locket  v.  Jan\es,  B  Bush  (.Ky.).   28; 

40;    Tompkins    v.    Fonda.    4    Paige  Frencli  v.  Crosby,  61  Me.  502. 

(N.  Y.),  448;  Reed  v.  Ash,  30  Ark.  775 ;  •>  Marvin  v.    Smith,  46  N.  Y.  571 ; 

Marvin  v.  Smith,  40  N.  Y.  571.  Carson  v.   Murray,  3  Paige  (N.  Y.), 

'■'Croade    v.    lugraham,    13    Pick.  483. 
(Mass.)  33. 


36  CONTRACT    OF   SALE. 

which  is  not  superseded  or  set  aside  as  against  him  or  his 
grantee,  her  right  of  dower  is  forever  barred  and  extin- 
guished for  all  purposes  and  as  to  all  persons.' 

Upon  the  death  of  the  husband  the  inchoate  right  of  the 
wife  acquired  by  the  marriage  becomes  absolute;  yet  she  has 
no  estate  in  the  lands  of  her  deceased  husband  until  her  dower 
lias  been  admeasured  and  assigned,^  and  her  rights  therein 
can  only  be  released  to  the  owner  of  the  fee  or  to  some  one  in 
privity  with  the  title  by  his  covenants  of  warranty.^  After 
assignment  the  widow  acquires  an  estate  of  freehold  in  the 
land  allotted  in  severalty,  and  her  life  estate  therein  possesses 
all  the  attributes  of  other  estates  for  life,  including  the  right 
of  alienation/ 

§  8.  Curtesy.  Another  life  estate  derived  from  the  com- 
mon law  is  that  which  a  husband  acquires  in  his  wife's  lands 
by  reason  of  the  marital  relation,  called  an  estate  by  the  curt- 
esy.^ Originally  this  estate  was  raised  only  when  the  husband 
had  issue  by  the  wife;  for  before  that  event  the  husband  had 
only  an  estate  during  the  joint  lives  of  himself  and  his  wife. 
The  law  that  a  husband  who  had  issue  should  retain  the  lands 
of  his  deceased  wife  during  his  life  seems  to  have  prevailed 
among  all  the  northern  nations;^  and  when  the  customs  of  the 

lElmdorf  v.  Lockwood,  57  N.  Y.  was  "estate  by  the  curtesy  of  Eng- 

332.  land,"  and  was  so  called  for  the  rea- 

2  Johnson  v.  Montgomery,  51  111.  son  that,  unlike  dower,  it  was  not 

185.  regarded  as  resting  upon  any  moral 

SAs  where  the  former  owner  of  foundation,  and  was  therefore  granted 

the  fee  in  land  in  which  dower  rights  as   a  simple  curtesy,  or  an  estate  by 

Btill    exist  has  conveyed  the    same  the  favor  of  the  law   of  England. 

with  warranty,  he  may  purchase  the  Cruise,  Dig.  tit.  V ;  2  P.  Wms.  703 ; 

right  for  the  benefit  of  his  grantee,  Litt.  §  35. 

however  remote,  and  thus  prevent  a       6  Notwithstanding  that  this  estate 

breach  of  his  covenants.     La  Fram-  is  derived  from  the  common  law  it  is 

boise  v.  Crow,  56  111.  197.  not  peculiar  to  England,  but  may  be 

*  Dower  is  probablj'  the  only  exist-  found,  more  or  less  modified,  in  the 
ing  use  in  which  a  title  that  is  com-  ancient  laws  of  the  other  parts  of  the 
plete  and  unopposed  by  any  adverse  British  islands  and  the  northern  con- 
right  of  possession  does  not  confer  tinental  nations.  It  has  even  been 
upon  the  person  in  whom  it  is  vested  held  by  some  writers  that  the  custom 
the  right  of  reducing  it  to  possession  may  be  traced  to  one  of  the  rescripts 
by  entry  before  assignment.  Hoots  of  the  Emperor  Constantine.  See  4 
V.  Graham,  23  111.  81.  Kent's  Com.  28. 

6  The  full  title  of  this  ancient  estate 


SUBJECT-MATTER.  37 

Nornicans  were  reduced  to  writinf^  this  law  was  inserted  among 
them  and  established  in  Enghmd,  probably  durinf^  the  reign 
of  Henry  I.  The  estate  is  described  in  the  ancient  books  as 
"where  a  man  taketh  a  wife  seized  in  fee-simple,  or  in  fee-tail 
general,  or  seized  as  heir  in  special-tail,  and  hath  issue  by  the 
same  wife,  male  or  female,  born  alive;  albeit  the  issue  after 
dieth  or  liveth,  yet  if  the  wife  dies  the  husband  shall  hold  the 
land  during  his  life,  by  the  law  of  England."  ^ 

While  the  right  of  the  husband  as  tenant  by  the  curtesy  has 
been  expressly  given  by  statute  in  some  of  the  states,  and  in- 
cidentally recognized  as  an  existing  legal  estate  in  others,  yet 
in  a  majority  of  them  tenancy  by  the  curtesy  has  been  abol- 
ished, the  husband  being  given  a  statutory  allowance  from  the 
deceased  wife's  estate,  the  ([uantity  and  quality  varying  in  the 
different  states.  In  many  the  husband  and  wife  are  made  stat- 
utory heirs  to  each  other;  and  in  such  cases  the  husband  takes 
the  same  share  in  the  deceased  wife's  estate  which  she  would, 
on  surviving:,  take  in  his:  in  others  the  estate  has  been  reduced 
to  extremely  meager  proportions,  and  accrues  only  in  such 
lands  as  the  wife  owned  at  the  time  of  her  death,  and  of  which 
she  had  made  no  valid  disposition  by  last  will  and  testament. 

By  the  rules  of  the  common  law,  marriage,  seizin  of  the  wife 
and  birth  of  living  issue  were  absolutely  necessary  to  the  ex- 
istence of  this  estate;  but  these  two  latter  incidents  are  prac- 
tically, if  not  expressly,  abolished  in  every  state  in  the  Union. 
Seizin,  as  formerly  understood,  is  no  longer  necessary  for  the 
creation  or  descent  of  any  estate ;  and  marriage,  without  respect 
to  issue,  is  sufficient  to  confer  the  right  if  recognized  at  all. 

^  y.  Homesteads.  To  the  estates  derived  from  the  common 
law  the  statute  has  added  another  which  in  its  essential  charac- 
teristics has  no  analogy  in  the  law.  It  is  called  a  homestead, 
and  is  a  constitutionally  guarantied  right  annexed  to  land, 
whereby  the  same  is  exempted  from  sale  under  execution  for 
debt.  In  many  —  perhaps  a  majorit}'"  —  of  the  states  the  home- 
stead right  is  but  a  mere  privilege  of  occupancy  against  cred- 
itors, the  continuance  of  which  depends  upon  the  continuance 
of  prescribed  conditions,-  but  in  others  it  has  been  raised  into 

»  Litt.  ^  35.  308;  Drake  v.  Kinsel),  38  Mich.  232; 

-Brame  v.  Craig,   13  Bush  (Ky.),    UiLI  v.  Franklin,  5  i  Miss.  C32. 
404;  Casebolt  v.  Donaldson,  07  Mo. 


3S  CONTRACT   OF   SALE. 

an  estate,  limited  only  as  to  its  value,  and  not  by  any  specific 
degree  of  interest  or  character  of  title  in  the  particular  prop- 
erty to  which  it  attaches;  and  where' the  worth  of  the  ])roperty 
does  not  exceed  the  statutory  valuation  the  estate  practically 
embraces  the  entire  title  and  interest  of  the  householder 
therein,  leaving  no  separate  interest  in  him  to  which  liens  can 
attach  or  which  he  can  alien  distinct  from  the  estate  of  home- 
stead.^ 

The  estate  of  homestead,  having  been  raised  by  law  as  a 
protection  to  the  family,  is  personal  in  its  character,  and  exists 
only  in  favor  of  one  who  already  possesses  some  other  recog- 
nized estate  in  the  land.  It  is  therefore  incapable  of  aliena- 
tion except  in  connection  with  other  interests,  but  when  so 
joined  may  be  a  proper  subject  of  sale,  mortgage  or  release. 
The  interest  of  the  householder,  if  a  married  man,  is  always 
shared  by  the  wife;  and  her  consent,  as  manifested  by  convey- 
ance, is  always  necessary  to  complete  the  devolution  of  title. 

So  far  as  the  estate  bears  resemblance  to  the  common-law 
estates,  its  general  features  are  more  nearly  allied  to  estates 
for  life;  and  modern  writers,  whenever  an  attempt  has  been 
made  to  definitely  locate  it,  have  usually  classed  it  in  that 
category. 

§  10.  Estates  for  years.  It  would  seem  that  after  the  Nor- 
man conquest,  while  the  demesnes  of  the  lords  of  manors  were 
generally  cultivated  by  their  villeins,  to  whom  small  tracts  of 
land  were  allotted  for  their  support  and  maintenance,  to  be 
held  at  the  mere  will  of  the  lord,  yet  as  to  those  persons  whose 
condition  was  free  it  became  customary  to  grant  them  lands 
for  a  certain  number  of  years,  to  be  held  in  consideration  of  a 
return  of  corn,  hay  or  other  portion  of  their  crops.  By  this 
means  they  acquired  a  certain  interest  in  their  lands,  though 
much  inferior  to  an  estate  of  freehold ;  yet  notwithstanding 
this  permanent  interest  their  possession  was  esteemed  of  so  lit- 
tle consequence  that  they  were  rather  considered  as  bailiffs  or 
servants  of  the  lord  than  as  having  any  estate  in  the  land,  and 
their  interest  might  be,  and  of  ttimes  was,  defeated  by  a  recovery 
in  a  real  action.^    A  tenant  for  years  was  not  said  to  be  seized 

1  Merritt  v.  Merritt,  97  111.  243.  come  in  by  a  title  paramount,  and 

-Tlie    recoverer  was  supposed   to   therefore  not  bound  by  the  contracts 


SUBJECT   MATTER.  39 

of  the  land,  the  possession  not  having  been  given  to  him  by 
the  ceremony  of  livery  of  seizin;  nor  did  the  mere  delivery  of 
a  lease  vest  any  estate  in  tiie  lessee,'the  interest  acquired  being 
only  a  right  of  entry;  but  after  he  iiad  actually  entered  the 
estate  became  vested  in  him,  and  he  was  then  possessed,  not 
properly  of  the  land,  but  of  the  term  for  years  —  the  seizin  of 
the  freehold  still  remaining  in  the  lessor. 

In  its  modern  aspects  the  estate  for  years  exhibits  but  few 
of  the  numerous  subtleties  and  refinements  which  formerly 
characterized  it.  It  is  simj)le  in  form  and  popular  in  use,  and 
with  the  exception  of  the  fee  is  the  most  common  estate  known 
to  our  law.  In  its  essentials  it  is  a  right  to  the  possession  of 
land  for  a  certain  specified  time,  and,  unlike  estates  for  life,  is 
never  created  by  act  of  law,  but  always  by  the  contract  of  the 
parties.  It  is  inferior  in  rank  to  a  life  estate,  however  long  it 
may  last;  and,  not  rising  to  the  dignity  of  a  freehold,  is  at  best 
but  a  chattel  interest.  It  is  created  and  perfected  by  the  exe- 
cution and  delivery  of  a  lease  for  the  term,  and  in  this  respect 
differs  materially  from  the  old  estate  of  the  English  law,' 
"which  required  an  actual  entry.  It  may  be  limited  to  com- 
mence presently  or  in  futtiro,  and,  unless  restricted  by  the 
terms  or  conditions  of  the  grant,  may  be  sold  and  assigned  the 
same  as  other  real  property. 

An  estate  for  years  may  be  terminated  by  expiration  of  its 
own  limitation,  by  a  surrender  of  the  term  prior  to  that  event, 
by  forfeiture  for  condition  broken,  and  in  some  instances  by 
merger. 

§11.  Estates  at  will  aud  by  sufferance.  A  tenant  at 
will  is  one  who  has  no  sure  or  certain  estate,  but  holds  at  the 

of  the  prior  possessor.     See  Greenl.  liad  clone  everything  necessary  on  his 

Cruise,  tit.  VIII,  ch.  I.  part  to  coiuplote  the  contract,  so  tliat 

1  By  the  common  law  upon  the  exe-  he  might  never  afterwards  avoid  it, 

cution  of  a  lease  the  lessee  acquired  yet  until  there  had  been  a  transniu- 

an  interest  called  interesse  ter'viini,  tation  of  possession  by  actual  entry 

which  he  might  at  any  time  reduce  of  the  grantee,  it  lacked   the  cnit-f 

to  possession  by  an  actual  entry,  but  mark  and  indication  of  his  consent, 

no  estate  for  years  could  be  created  witiiout  wliich  he  could  not  be  said 

by  a  lease  or  other  common-law  con-  to  be  in  possession  or  liable  for  the 

veyance    without    an    actual    entry  use.     See  Greenl.   Cruise,   tit.   VIII, 

made  by  the  person  to  whom  the  land  ch.  I. 
was  granted ;  for  although  the  grantor 


40  CONTRACT   OF   SALE. 

pleasure  of  his  lessor,  who  at  any  time  may  dispossess  him. 
The  tenancy  is  created  only  by  the  entry  of  the  lessee,  and 
may  be  terminated  as  soon  as  commenced.  The  terms  "at 
will "  and  ''  by  sufferance  "  are  generally  employed  together  to 
indicate  any  estate  of  indeterminate  duration  depending  solely 
on  the  pleasure  of  the  landlord;  yet,  as  a  matter  of  law,  they 
are  entirely  separate  and  distinct.  A  tenant  by  sufferance, 
technically  speaking,  is  one  who,  having  been  originally  law- 
fully invested,  continues  to  hold  over  after  the  determination 
of  his  estate,  and  is  by  the  owner  suffered  to  remain  in  posses- 
sion.^ In  the  former  case,  the  tenant  having  acquired  posses- 
sion by  the  consent  of  the  owner,  there  is  between  them  a 
privity  of  estate;  in  the  latter,  being  much  in  the  nature  of  a 
trespass,  there  is  none. 

The  interest  of  a  tenant  at  will  is  the  most  precarious  that 
can  be  had  in  real  property;  and,  because  the  lessor  may  deter- 
mine his  will  and  oust  the  tenant  whenever  he  pleases,  such 
tenant  possesses  nothing  that  can  be  granted  by  him  to  a  third 
person. 

§  12.  Joint  estates.  With  respect  to  the  number  and  con- 
nection of  the  owners,  real  estate  may  be  held  in  severalty  or 
jointly,  the  former  being  where  a  person  holds  the  same  in  his 
own  right  with  no  other  person  joined  or  connected  with  him 
in  point  of  interest  during  the  estate  therein;  the  latter  where 
two  or  more  persons  take  either  an  estate  of  inheritance,  for 
life  or  for  years,  without  any  restrictive,  exclusive  or  explana- 
tory words.'-' 

Formerly  joint  estates  were  divided  into  those  of  joint  ten- 
ancy, coparcenary,  and  common.  Joint  tenancy  was  always 
created  by  purchase — that  is,  by  act  of  the  parties  —  and  accrued 
only  by  one  and  the  same  conveyance;  it  was  characterized 
by  the  great  underlying  principle  of  unity,  which  extended 

1  Tenants  at  sufferance  were  not  lia-  alty  for  withholding  the  property  im- 

ble  by  the  common  law  to  pay  any  poses  upon  the  tenant  double  rent, 

rent,  because  it  was  the  folly  of  the  ^  xhe  law  will  interpret  a  grant  of 

owneys  to  suffer  them  to  continue  in  this  kind  so  as  to  make  all  its  jjarts 

possession  after  the  determination  of  take  effect,  which  can  only  be  done 

the  preceding  estate.    Greenl,  Cruise,  by  creating  an  equal  interest  in  all 

tit.  IX.     Usually,  however,  the  stat-  the  persons  who  take  under  it. 
ute  has  reversed  this,  and  as  a  pen- 


BL'BJECT-MATTER.  41 

both  to  the  interest,  the  title  and  possession;  and  this  union 
and  entirety  of  interest  gave  rise  to  another  incident  called  the 
jmsaccreacendl  or  right  of  survivorshij).  As  the  right  of  surviv- 
orship was  often  attended  with  hardship  and  injustice,  courts 
of  equity  at  an  early  day  took  groat  latitude  in  construing 
against  joint  tenancies  on  the  ground  of  intent,  while  by  stat- 
ute in  the  United  States  the  general  rule  is  that  all  estates 
vested  in  two  or  more  persons  are  to  be  deemed  tenancies  in 
coninion,  unless  a  different  tenure  is  clearly  expressed  or  im- 
plied in  the  instrument  creating  the  estate.  Estates  in  copar- 
cenary are  practically  unknown  in  this  country.  They  arose 
through  a  peculiar  provision  of  the  English  law  of  descent,  and 
were  raised  only  in  case  of  female  heirs.^ 

A  tenancy  in  common  was  formerly  created  where  two  or 
more  persons  held  lands  by  several  titles,  and  not  by  a  joint 
title;  and  from  the  fact  that  they  Avere  all  permitted  to  occupy 
the  land,  they  were  called  tenants  in  common.  The  only  unity 
required  was  that  of  possession,  and  it  mattered  not  that  one 
held  his  estate  in  fee  and  the  other  for  life;  or  that  one  de- 
rived his  title  through  purchase  and  the  other  through  descent; 
and  the  estates  might  commence  at  any  time  without  reference 
to  each  other.  Substantially  all  of  these  incidents  have  been 
preserved,  but  with  the  further  addition  that  b}''  statute,  in 
most  of  the  states,  all  grants  and  devises  of  lands  made  to  two 
or  more  persons  are  construed  to  create  estates  in  common  and 
not  in  joint  tenancy.- 

Tenants  in  common  are  seized  of  each  and  every  part  of  the 
property ;  but  it  is  not  in  the  power  of  one  to  convey  the  whole 
of  the  same,  or  the  whole  of  a  distinct  portion  thereof,  or  to  give 
a  license  to  do  any  act  which  will  w^ork  a  permanent  injury  to 
the  inheritance  or  lessen  the  value  of  the  estate.^  Yet  as  the 
freeholds  are  several  and  distinct,  Avitli  no  ])rivity  of  estate 

1  As  where  a  person  seized  of  land  vises  or  grants  made  to  executors,  or 

died,  leaving  only  daughters  or  other  to  husband  and  wife, 

female  heirs,  the  estate  descended  to  3  ;\jjittox  v.  Hightshue,  39  Ind.  95- 

all  such  daughters  jointly,  and  they  Shepardson  v.  Rowland,  28  Wis.  108 ; 

were  said  to  hold  in  coparcenary,  and  Hartford,  etc.  Ore  Co.  v.   Miller,  41 

to  make  but  one  heir  to  the  ancestor.  Conn.  113;  Murray  v.  Ilaverly,  TO  111. 

1  Greenl.  Cruise,  tit.  XIX,  sec.   1.  318.      Compare  Barnhart    v.  Cami>- 

■2  An  exception  is  generally  made  bell,  50  Mo.  597. 
in  respect  to  mortgages  and  to  de- 


42  OONTEACT   OF   SALE. 

between  the  tenants,  each  of  the  individual  interests  may  be 
sold  and  conveyed  to  a  stranger;^  and,  as  property  indivisible 
in  its  cliaracter  is  incapable  of  several  possession  by  each  ten- 
ant, it  therefore  follows  that  the  possession  of  one  is  a  con- 
structive possession  of  the  others,  and  when  one  of  the  tenants 
not  in  the  actual  possession  makes  a  sale  of  his  interest  in  the 
property,  the  purchaser  succeeds  to  all  the  rights  of  the  vendor 
as  held  by  him,  without  an  actual  delivery  of  possession.^ 

§  13.  Estates  by  entirety.  Another  of  the  joint  estates 
derived  from  the  common  law  is  that  which  is  created  when  a 
conveyance  is  made  to  husband  and  wife,  and  which  is  denom- 
inated a  tenancy  by  entirety.  The  conveyance  in  such  case 
does  not  constitute  them  either  joint  tenants  or  tenants  in 
common;  for  they  are,  in  legal  contemplation,  but  one  person, 
and  hence  unable  to  take  by  moieties.  Eoth  would  therefore 
be  seized  of  the  entirety;  neither  could  dispose  of  any  part  of 
the  estate  without  the  assent  of  the  other,  and  upon  the  death 
of  either  the  whole  estate  would  remain  in  the  survivor.  This 
rule  has  not  been  materially  changed  by  statute,  and  is  ac- 
cepted in  a  majority  of  the  states.^  In  such  an  estate  there 
can  be  no  partition,  as  neither  has  any  separate  interest.  Be- 
tween them  there  is  but  one  owner;  and  that  is  neither  the  one 
nor  the  other,  but  both  together.  The  common  law,  it  would 
seem,  permitted  the  husband,  for  his  own  benefit,  during  their 
joint  lives,  to  use,  possess  and  control  the  land  and  take  all  the 
profits  thereof,  and  even  to  mortgage  and  convey  an  estate 
during  such  joint  lives,  though  he  could  make  no  disposition 
of  the  land  that  would  prejudice  the  right  of  the  wife  in  case 
she  survived  him;  but  the  later  and  apparently  better-consid- 
ered cases  hold  that,  from  the  peculiar  nature  of  this  estate 
and  from  the  legal  relation  of  the  parties,  there  must  be  unity 
of  estate,  unity  of  possession,  unity  of  control,  and  unity  in 
conveying  and  incumbering  it.* 

1  Butler  V.  Roys,  25  Midi.  53.  ner  v.  Jones,  52  Mo.  68;  Robinson  v. 

2  Brown  v.  Graham,  24  111.  628;  Eagle,  29  Ark. -202 ;  Marburg  v.  Cole, 
Fischer  v.  Eslanian,  68  111.  78.  49  Md.  402;  Hulett  v.  Inlon,  57  Ind. 


3  Arnold  v.  Arnold,  30  Ind.  305 
Hemingway  v.  Scales,  42  Miss.  1 
Washburn  v.  Burns,  34  N.  J.  L.  18 
McCurdy  v.  Canning,  64  Pa.  St.  39 


412 ;  Berlles  v.  Nunan,  92  N.  Y.  152 ; 
Meyers  v.  Reed.  17  Fed.  Rep.  401. 

4  Chandler  v.  Cheney,  37  Ind.  391 ; 
Hulett  V.  Inlon,  .57  Ind.  412;  McDuff 


Fisher  v.  Provin,  25  Mich.  347 ;  Gar-    v.  Beauchamp,  50  Miss.  531. 


SUBJECT-MATTER.  43 

In  several  of  the  states  where  the  rule  formerly  prevailed  it 
has  been  held  that  the  le;,^al  unity  of  husband  and  wife  has 
been  broken  by  the  ''  married  women's  "  acts,  and  that  they 
take  only  as  tenants  in  common.'  I>ut  estates  which  liad 
vested  prior  to  the  acts  in  question  are  not  affected,  chan<^ed 
or  modified  by  them.  They  remove  no  disabilities  and  confer 
no  new  rights  in  relation  to  such  estates,  which  can  only  be 
conveyed  or  incumbered  by  the  joint  act  of  both  parties,  while 
the  survivor  takes  an  absolute  title  to  the  whole  in  case  of 
death,  as  heretofore."' 

A  review  of  the  statutes  shows  that  the  legislation  of  thu 
states  concerning  the  property  rights  of  married  women  has 
been  very  uniform,  but  the  judicial  construction  of  similar 
statutes  has  been  variant  and  contradictory.  In  some  in- 
stances, as  has  been  observed,  courts  have  decided  that  stat- 
utes making  joint  grantees  tenants  in  common,  and  giving  to 
married  women  the  same  rights  in  property  as  though  they 
were  sole,  have  effectually  destroyed  the  common-law  unity  of 
husband  and  wife,  and  made  them  substantially  separate  per- 
sons for  all  purposes;  but  in  a  majority  of  the  states  the  de- 
clared effect  of  these  statutes  has  been  confined  to  their  express 
terms,  and  they  have  been  held  to  have  no  relation  to  oi-  effect 
upon  real  estate  conveyed  to  husband  and  wife  jointly,  and 
that,  notwithstanding  these  statutes,  they  still  take  as  tenants 
by  the  entirety.* 

§  14.  Easements. —  An  easement  is  generally  defined  as  a 
right  in  the  owner  of  one  jiarcel  of  land,  by  reason  of  such 
ownership,  to  use  the  land  of  another  for  a  special  purpose 
not  inconsistent  with  a  general  property  in  the  owner;*  and  it 
may  still  further  be  defined  as  an  incorporeal  right  existing  in 

1  Hoffmann  v.  Stigers,  28  Iowa,  old  books  it  is  defined  as  a  privilege 
302;  Clark  v.  Clark.  56  N.  H.  105;  which  the  owner  of  one  adjacent  ten- 
Cooper  V.  Cooper,  76  111.  57;  Walt-  euicnt  hath  of  another,  existing  in 
hall  V.  Goree,  36  Ala.  728.  respect  to  their  several  tenements,  hy 

2  Harrer  v.  Wallner,  80  111.  197.  which  that  owner  against  whose  ten- 

3  See  Bertles  v.  Nunan,  92  N.  Y.  ement  the  privilege  exists  is  obliged 
152;  Farmers',  etc.  Bank  v.  Greg-  to  suffer  or  not  to  do  sometliing  on 
ory,  49  Barb.  (N.  Y.)  155;  Bates  v.  or  in  regard  to  liis  own  land  for  the 
Seeley,  46  Pa.  St.  248 ;  Robinson  v.  advantage  of  him  in  whose  land  the 
Eagle,  29  Ark.  202;  McDuff  v.  Beau-  i)rivilege  exists.  Terines  de  la  ley, 
champ,  50  Miss.  531.  Easements;  Bouv.  Law  DicU 

*2  Wash.  Real  Prop.  25.    lu  the 


44  CONTKACT   OF    SALE. 

favor  of,  and  imposed  upon,  corporeal  property.  The  converse 
of  an  easement  is  denominated  a  servitude.  The  land  to  which 
the  privilege  is  attached  is  called  the  dominant  estate,  and  that 
against  which  it  exists  the  servient  estate;  and  as  these  rights 
are  not  usually  personal,  and  do  not  change  with  the  persons 
who  may  own  the  respective  estates,  it  is  very  common  to 
personify  the  estates  as  themselves  owning  or  enjoying  the 
easements. 

An  easement  is  technically  created  only  by  a  grant  or  con- 
firmation ;  but  such  grant  may  be  implied  when  the  existence 
of  the  easement  is  necessary  to  the  enjoyment  of  that  which 
is  expressly  granted  or  reserved,  upon  the  principle  that  where 
one  grants  anything  to  another  he  thereby  grants  to  him  the 
means  of  enjoying  it,  whether  expressed  or  not;^  and  in  pur- 
suance of  this  principle  the  general  rule  is  that,  in  every  deed 
of  a  part  of  the  grantor's  land  without  express  provision  on 
the  subject,  there  is  an  implied  grant  or  reservation  of  all 
easements  of  necessity  for  the  enjoyment  of  the  part  conveyed 
or  the  part  retained.^  Generally,  however,  the  rule  which 
creates  an  easement,  without  an  express  reservation,  upon  the 
severance  of  two  tenements  or  heritages  by  the  sale  of  one  of 
them,  is  confined  to  cases  where  some  apparent  sign  of  servi- 
tude on  the  part  of  one  in  favor  of  the  other  exists  which 
would  indicate  its  existence  to  one  reasonably  familiar  vrith 
the  subject,  upon  an  inspection  of  the  premises.^ 

An  easement  may  also  be  established  by  prescriptive  user 
from  which  a  grant  is  inferred;  but,  in  respect  to  the  acquisi- 
tion of  easements  in  this  manner,  no  universal  rule  of  law  as 
to  the  effect  in  evidence  of  particular  facts  can  be  laid  down. 
Whether  long-continued  use  of  an  easement  is  adverse  or  is  in 
subordination  to  the  title  of  the  true  owner  is  a  matter  of  fact, 
to  be  decided,  like  other  facts,  upon  the  evidence  and  upon  the 
circumstances  of  each  particular  case.*  "Where  an  easement  is 
established  by  prescription  or  inferred  from  user  it  is  limited 
to  the  actual  user.* 

Easements  are  classed  as  appurtenant  or  in  gross ;  but  so  far 

1  Lanier  v.  Booth,  50  Miss.  410.  ■»  Bradley's  Fish  Co.  v.  Dudley,  37 

^Dillman  v.  Hoffman,  38  Wis.  559.  Conn.  136. 

3  Butterworth  v.  Crawford,  46  N.  Y.  *  Brooks  v.  Curtis,  4  Lans.  (N.  Y. ) 

349;  Providence  Tool  Co.  v.  Corliss  283. 
Co.  9  R.  L  564. 


SUBJECT-MATTER.  4o 

as  their  caj)acity  for  indepenilent  alienation  is  concerned  the 
classification  is  immaterial.  Whether  an  easement  is  appur- 
tenant or  appendant  to  an  estate  in  fee  in  lands,  or  in  gross, 
to  the  person  of  the  grantee  for  life  or  for  years,  it  is  equally 
incapable  of  alienation  or  conveyance  in  fee.  "When  in  gross 
it  is  purely  personal  to  the  holder  and  cannot  be  assigned,  nor 
will  it  pass  by  descent;  when  appurtenant  it  is  attached  to, 
and  is  incident  to,  the  land  and  passes  with  it,  Avhether  the 
land  be  conveyed  for  a  term  of  years,  for  life  or  in  fee.  Being 
an  incident  to  the  land,  it  cannot  be  separated  from  or  trans- 
ferred independent  of  the  land  to  which  it  inheres.^ 

§  15.  License.  In  the  common  law  the  word  "license"  is 
of  early,  constant  and  well-defined  use,  as  applied  to  the  con- 
cession of  certain  rights  by  the  owners  of  land  to  a  third 
party.  In  this  relation  it  imparts  to  the  licensee  rights  re- 
sembling, though  not  identical  with,  an  easement.  It  is  gen- 
erally defined  as  an  authority  to  do  some  one  act  or  series  of 
acts  on  the  land  of  another  without  passing  any  estate  in  the 
land; 2  and  the  right  or  property  thus  conferred  is  of  that  class 
denominated  incorporeal  hereditaments.  A  license  may  be 
created  by  parol;  but  if  it  constitutes  a  permanent  right  or 
confers  any  interest  in  the  land  must  be  by  grant;  ^  and  when 
such  license  is  coupled  with  an  interest  by  reason  of  the  pay- 
ment of  price  or  other  act,  it  has  been  held  that  the  authority 
conferred  is  not  a  mere  permission,  but  amounts  to  a  grant 
which  obliges  the  grantor  and  vests  legal  property  in  the 
grantee.* 

Licenses  which,  in  their  nature,  amount  to  the  granting  of 
an  estate,  though  for  ever  so  short  a  time,  are  considered  as 
leases,* 

A  license,  being  a  mere  privilege  founded  in  personal  confi- 
dence, ceases  with  the  death  of  either  party,  and  cannot  be 

nVash.  Easements,   10;  Koelle  v.  term  '  appurtenances,' without  being 

Knecht,  99  111.  496.     "They  are  in  expressly  named." 

the  nature  of  covenants  running  with  ^Cook  v.    Stearns,    11   Mass.    5;G: 

the  land,"  says  the  court  in  Garrison  Mumford    v.    Whitney,    15    Wend. 

V.  Rudd,  19  111.  558,  "  and,  like  them,  (N.  Y.)  390. 

must  respect  the  thing  granted   or  '  Chute  v.  Carr,  20  Wis.  531 ;  Cook 

demised,  and  must  concern  tlie  land  v.  Stearns,  11  Mass.  536. 

or  estate  conveyed.     They  pass  by  a  <Rerick  v.  Kern,  14  S.  «SfeR.(Pa.)267. 

conveyance  of  the  land,  under  the  ^Cook  v.  Stearns,  11  Masa.  536. 


46  *  CONTRACT    OF    SALE. 

transferred  or  alienated  by  the  licensee,  and,  if  executor}-,  is 
revocable  at  any  time  at  the  pleasure  of  the  grantor.^ 

The  main  difference  between  an  easement  and  a  license  lies 
in  the  fact  that  the  former  must  arise  in  grant,  while  the  lat- 
ter, conveying  no  estate  or  interest  in  the  land,  may  rest  in 
parol;  yet  the  distinction  is  very  subtile,  and  it  becomes  diffi- 
cult in  many  cases  to  discern  a  substantial  difference  between 
them.^ 

§  16.  Contingent  interests  and  estates.  Any  or  all  of  the 
foregoing  enumerated  estates  may  be  classified  as  vested  or 
contingent;  and  while  sales  and  conveyances  are  usuall}'^  made 
with  reference  to  vested  rights,  it  is  not  uncommon  for  parties 
to  contract  with  reference  to  estates  to  be  acquired  in  the 
future  and  resting  wholly  upon  a  contingency.  In  a  very  few 
instances  the  legal  right  to  so  contract  has  been  denied,  and 
courts  have  refused  to  give  effect  to  contracts  so  made,  partic- 
ularly in  the  case  of  sales  of  expectancies  by  presumptive  heirs. 
But  while  deeds  of  this  character  can  have  no  operation  at 
law  as  grants,  yet  in  equity  it  is  well  settled  that  an  instru- 
ment which  purports  to  convey  property  which  is  in  expect- 
ancy, or  to  be  subsequently  acquired,  or  which  is  not  of  a 
nature  to  be  grantable  at  law,  although  inoperative  as  a  grant 
or  conveyance,  will  be  upheld  as  an  executory  agreement,  and 
enforced  according  to  the  intent,  if  supported  by  valid  con- 
siderations, whenever  the  grantor  is  in  a  condition  to  give  it 
effect.' 

§  17.  Powers.  A  power,  technically  speaking,  is  not  an 
estate,  but  is  a  mere  authority,  enabling  a  person,  through  the 
medium  of  the  statute  of  uses,  to  dispose  of  an  interest  in  real 
property  vested  either  in  himself  or  in  another  person.^ 

iDeHarov.  United  States,  5  Wall.  3  Bailey  v.   Hoppin,  12  R.  I.  560; 

(U.  S.)  599;  Mum  ford  V.  Whitney,  15  and    see    Jackson     v.     Bradford,    4 

Wend.  (N.  Y.)  380.  Wend.  (N.  Y.)  619. 

2Mumford  v.  Whitney,  15  Wend.  ••Burleigh  v.  Clough,  53  N.  H.  267. 
(N.  Y.)  380;  Thompson  v.  Gregory,  4 
Johns.  (N.  Y.)  81. 


8UEJECT-MATTEK. 


47 


Art.  III.     The  Title. 


§  1.  Title  generally  considered. 

2.  Classification. 

8.  Acquisition  and  disposal. 

4.  Derivation  and  nature  of  title. 

5.  Marketable  title  defined. 


go. 

7. 


Derivative  title  —  Descent. 
Tax  titles. 

8.  Culor  of  title. 

9.  The  right  to  the  possession  of 

title  deeds. 


§  1.  Title  generally  considered.  The  property  or  interest 
■which  a  person  may  have  in  lands,  tenements  or  hereditaments, 
as  has  been  shown  in  the  preceding  article,  is  described  in  tlie 
comprehensive  term  estate;  the  method  of  acquiring  or  holding 
same  is  denominated  title.  Title,  therefore,  is  properly  an  inci- 
dent of  estates;  and  although  it  is  customary  in  speaking  of 
the  transfer  of  real  property  to  allude  to  a  sale  of  the  title, 
yet  as  a  matter  of  fact  the  title  itself  is  not  really  sold,  nor 
does  it  form  in  any  proper  sense  of  the  term  a  subject  of  barter 
or  sale.  The  title  regularly  devolves  with  a  sale  of  the  estate; 
and  no  matter  how  many  outstanding  titles  or  claims  of  title 
ihere  may  be,  they  all  rest  upon  some  species  of  estate,  and  as 
the  estates  merge  the  titles  vest  by  operation  of  law.  The  title 
is  inseparabl\'  connected  with  the  estate,  and  represents  the 
right  or  authority  for  the  enjoyment  of  land,  even  as  the  es- 
tate represents  the  quality  and  extent  of  such  enjoyment. 

But  while  title,  in  itself,  is  not  the  subject  of  conveyance  by 
the  ordinary  forms  prescribed  by  law  and  only  follows  the  es- 
tate as  an  incident,  it  is  nevertheless  an  essential  and  dominat- 
ing consideration  in  nearly  every  transfer  of  land ;  and  although 
nothing  mav  have  been  said  concerning  the  title  durini;  the 
negotiations  attending  the  sale,  the  law  presumes  that  it  en- 
tered into  the  contemplation  of  the  parties  at  that  time,  and 
raises  an  imi)lied  ])romise  on  the  part  of  the  vendor  that  he 
])0ssesses  title,  and  that  it  is  of  such  a  character  as  to  assure 
the  vendee  of  a  quiet  and  peaceable  enjoyment  of  the  property.^ 
In  common  parlance  this  is  called  a  "marketable  title." 

It  is  competent  for  the  jxirties  to  stipulate  as  to  the  character 

1  Delevan  v.  Duncan.  49  X.  Y.  485 ;  does  not  mention  the  title  to  be  given, 
Holland  V.  Holmes,  14  Fla.  390;  Flynn  an  iuiplication  arises  that  it  is  to  be 
V.  Barber,  64  Ala.  193;  Wuodrutf  v.  free  from  incumbi-ances  (Newark  Sav- 
Thorne,  49  111.  88;  Moulton  v.  Chafee,  ings  Institution  v.  Jones,  37  N.  J.  Eq. 
^2  Fed.  Rep.  20.     If  the  agieeuient   449). 


48  CONTRACT   OF    SALE. 

of  the  title,  and  their  agreements  in  this  respect  will  be  given 
a  controlling  efficacy  on  all  questions  subsequently  arising;  but 
in  the  absence  of  such  stipulations,  or  of  proper  evidence  of  an 
agreement  respecting  title,  a  marketable  title  is  al\va3'6  pre- 
sumed, and  the  purchaser  will  never  be  compelled  to  accept 
any  other,^  The  right  to  such  a  title  is  inherent  in  the  trans- 
action ;  it  does  not  grow  out  of  the  agreement,  but  is  given  by 
law,  and  may  be  demanded  by  the  purchaser  as  a  matter  of 
legal  right.2 

§  2.  Classification.  Titles  may  be  classified  as  legal  and 
equitalle  —  a  distinction  originally  applied  only  to  estates,  but 
now  extensively  used  to  designate  the  manner  of  acquiring 
and  holding  them  as  well.  The  equitable  title  usually  carries 
with  it  the  beneficial  interest  in  the  land,  together  with  the 
incidents  of  ownership,  the  legal  title  being  held  as  a  mere 
naked  trust;  and  is  illustrated  in  the  relations  of  the  govern- 
ment and  a  purchaser  of  public  land  before  patent  issues  —  a 
grantee  under  a  land  contract  after  payment  made  and  before 
execution  of  deed ;  or,  where  the  legal  title  has  been  conveyed 
to  a  trustee,  the  equitable  ownership  vesting  in  the  beneficiary 
or  cestui  que  trust. 

Custom  has  also  introduced  another  species  of  classification, 
based  on  the  impairments  or  defects  which  may  exist  in  the 
title  asserted  by  the  vendor,  by  which  the  title  is  said  to  be 
bad,  doubtful,  good  or  perfect;  the  latter  two  classes  being 
also  known  as  marketable  titles,  or  those  which  a  court  of 
equity  considers  so  clear  that  it  will  enforce  their  acceptance 
by  a  purchaser.  A  doubtful  title,  on  the  contrar}'-,  is  one  that 
a  court  will  not  go  so  far  as  to  declare  bad,  but  only  that 
it  is  subject  to  so  much  doubt  that  a  purchaser  ought  not  to 
be  compelled  to  accept  it.  The  doctrine  of  marketable  titles 
is  purely  equitable  and  of  modern  origin;  at  law  every  title 
not  bad  is  marketable. 


1  Mitchell  V.  Steinmetz,  97  Pa.  St.  Eq.  554;  Moulton  v.  Chafee,  22  Fed. 
254;  Chambers  v.  Tulane,  9  N.  J.  Eq.  Rep.  26. 

146 ;  Powell  v.  Connant,  33  Mich.  396 ;  The  reader  is  referred  to  the  chap- 
Taylor  V.  Williams,  45  Mo.  80;  Lud-  ters  on  "Rescission"  and  "Specific 
low  V.  O'Niel,  29  Ohio  St.  183;  Gill  Performance,"  where  the  subject  ia 
V.  Wells,  57  Md.  492.  considered  in  detail, 

2  Lounsbury  v.  Locamber,  25  N.  J, 


SUBJECT-MATTKi:.  4'J 

§  3.  Acquisition  and  disposal.  Elementary  writers  all  agree 
that  there  exist  but  two  modes  of  acquiring  title,  which  they 
denominate  respectively  descent  and  purchase;  the  hitter  term 
including  every  legal  method  of  acquisition  except  that  by 
which  an  heir,  on  the  death  of  an  ancestor,  succeeds  to  the 
estate  of  the  latter  by  operation  df  law.' 

Descent,  or  hereditary  succession,  was  by  the  common  law 
considered  the  better  title;  and  when  the  right  of  inheritance 
is  full}'  established  by  strict  compliance  with  the  law  relating 
to  descents,  proof  of  heirship,  etc.,  the  title  thus  conferred  is 
of  the  highest  dignity  and  effectual  for  all  i)urposes.  But 
though  the  title  vests  in  the  heir  by  operation  of  law  imme- 
diately on  the  death  of  the  ancestor,  yet  purchasers  desire  and 
should  have  affirmative  evidence  that  the  person  asserting  the 
same  is  justified  in  so  doing;  and,  in  the  absence  of  probate 
proceedings  or  a  judicial  determination  of  the  rights  of  the 
heirs,  titles  depending  on  descent  are  to  be  viewed  with  jeal- 
ousy and  accepted  with  the  greatest  caution,  and  particularly 
is  this  the  case  where  title  is  asserted  by  descent  by  an  heir  in 
a  remote  degree  from  the  intestate  or  common  ancestor. 

Purchase,  as  has  been  stated,  is  a  generic  term  which  in- 
cludes every  mode  of  coming  to  an  estate  except  by  inherit- 
ance,- though  in  its  more  limited  sense  it  is  applied  only  to  tho 
acquisition  of  lands  by  way  of  bargain  and  sale  for  money  or 
other  consideration.^  Neither  law-writers  nor  courts  seem  to 
have  ventured  on  a  more  extended  definition,  if  indeed  one 
can  be  framed;  and  the  one  above  given  has  come  down  un- 
chano-ed  from  Blackstone,  who  in  turn  borrowed  it  from  earlier 
writers.  There  are  four  ])rinci]i:il  methods  recognized  of  ac- 
quiring title  by  purchase,  to  wit:  by  deed,  devise,  ])rescription 
or  limitation  and  escheat.  To  these  may  be  added  title  ac- 
cruing through  operations  of  nature;  as  accretion,  reliction 
and  avulsion,  as  well  as  such  as  result  from  our  political  and 

•  The  common-law  estates  of  dower  tinction  in  respect  to  estates  acquired 
and  curtesy  have  been  regarded  by  by  purchase,  between  titles  crcattd 
some  as  properly  coming  within  tlie  by  act  of  law  and  those  by  act  of  tlio 
doctrine  of  descents;   and  the  stat-   parties. 

utory  regulations  of   many  of    the       -  Green  v,  Blanchar,  40  Cal.  194. 
states  would  strongly  seem  to  favor       "o  Bquv.  Law   Diet.  895;  Cruise, 
this  view.     Others  have  niado  a  dis-   Dig.  tit.  30. 
4 


50  COXTKACT    OF    SALF. 

civil  relations;  as  eminent  domain,  confiscation  and  forfeiture. 
Some  writers  still  further  extend  the  list  by  the  addition  of 
abandonment,  occupancy  and  estojipel.  The  two  former  of 
these  are  not  known  in  the  United  States,  while  the  latter  is 
not,  strict!}'  speaking,  a  method  of  acquiring  title  at  all,  but 
simply  a  recognition  of  exisfing  titles. 

§  4.  Derivation  and  nature  of  title.  The  king,  as  the  head 
and  sovereign  representative  of  the  nation,  is  by  the  English 
law  the  original  proprietor  or  lord  paramount  of  all  the  land 
in  the  kingdom,  and  the  true  and  only  source  of  title.  From 
the  crown  all  the  lands  in  the  realm  are  held,  either  mediately 
or  immediately,  by  a  tenure,  of  which  fealty  is  the  great  char- 
acteristic. This  grows  out  of  the  feudal  system,  by  which 
fealty  was  inseparably  incident  to  the  reversion,  and  could 
never  be  lost  to  the  ultimate  lord.  With  the  assumption  of 
independence,  the  state,  in  its  sovereign  capacity,  succeeded 
to  the  titles  of  the  king  and  became  the  proprietor  of  all  the 
lands,  and  hence  all  valid  individual  title  is  derived  only  from 
the  grant  of  the  federal  government;  from  the  state  govern- 
ment; or  from  foreign  powers  either  prior  to  the  Revolution 
or  the  subsequent  acquisition  of  the  territory  by  the  govern- 
ment, the  vested  rights  of  the  land-owner  being  recognized  in 
the  latter  case  by  treaty  at  the  time  of  the  cession  or  by  sub- 
sequent  confirmation.  But  the  state  does  not  lend  its  lands, 
like  a  feudal  lord,  nor  has  it  any  tenantry.  Its  patents  stipu- 
late for  no  fealty  or  other  feudal  incident;  and  though  title 
can  be  deduced  only  from  the  sovereign  —  the  state  —  bj''  direct 
grant  or  confirmation,  yet  when  so  acquired  it  is  held  in  pure 
and  free  allod'ann,  being  the  most  ample  and  perfect  interest 
that  can  be  obtained  in  land,  and  denoting  a  full  and  absolute 
ownership,  with  no  duties  to  a  superior  lord,  or  services  or 
fealty  incident  thereto.' 

§  5.  3Iarketal)le  title  defined.  Unless  there  has  been  some 
express  stipulation  as  to  the  character  of  the  title  to  the  estate 
to  be  conveyed,  a  marketable  title  is  always  presumed;-  and 
unless  this  can  be  satisfactorily  established  by  the  vendor. 


1  See  WarvcUe  on  Abstracts  of  ^Powell  v.  Conant,  33  Mich.  396; 
Title,  for  a  full  and  complete  discus-  Freetly  v.  Barnhart,  51  Pa.  St.  279; 
sion  of  this  subject,  chapter  II.  Taylor  v.  Williams,  45  Mo.  SO. 


8UBJECT-MATTEK.  61 

tliG  vendee  will  not  be  compelled  to  complete  the  purchase  or 
])ay  for  the  land.'  As  a  general  rule  a  title  "which  is  open  to 
judicial  doubt  is  not  marketable,-  although  what  is  sullicient 
ground  for  a  judicial  doubt  cannot  be  conclusively  reduced  to 
lixcd  and  determinate  principles,  as  it  depends  to  a  consider- 
able degree  upon  the  discretion  of  the  court.'  In  no  case, 
Iiowever,  will  a  purchaser  be  compelled  to  accept  a  property 
Avhicli  he  can  only  acquire  in  possession  by  litigation  and  ju- 
dicial decision; '  nor  one  the  possession  of  which  he  must  thus 
defend,^  or  which  would  expose  him  to  the  hazard  of  a  law- 
stnt."  Property  subject  to  incumbrance  can  never  be  imi)osed 
upon  the  purchaser  unless  he  has  so  agreed;'  but  the  mere 
fact  of  incumbrance  does  not  necessarily  defeat  the  vendor's 
title,  nor  in  any  proper  sense  render  it  unmarketable  when  the 
incumbrancq,is  of  such  a  character  as  to  admit  of  easy  re- 
moval. 

§  ().  Derivative  titles  —  Descent.  Title  by  descent,  though 
for  practical  purposes  regarded  as  a  new  title  springing  from 
the  death  of  the  ancestor,  and  which,  when  asserted,  must  be 
so  proved,  is  in  reality  but  a  continuation  of  the  ancestor's 
title  which  the  law  casts  upon  the  heir  at  the  moment  of  the 
ancestor's  death. '^  The  heir  is  regarded  in  law  as  the  \c<xa\  aiv 
]iointee  to  receive  the  title,  and  this  appointment  he  can  neither 
disclaim  nor  avoid.  The  title  of  the  heir,  therefore,  is  not  so 
much  an  acquisition  as  a  succession.  The  death  of  the  ances- 
tor does  not  create  a  title,  but  rather  confirms  in  the  heir  that 
which  was  previously  inchoate,  uncertain  and  defeasible.  It 
was  a  part  of  the  contract  in  the  original  grant  from  the  state 
that  the  grantee  and  his  heirs  might  hold,  possess  and  enjoy 
the  land;  and  unless  the  ancestor  has  exercised  the  power  of 
alienation  in  his  life-time,  the  heir,  upon  his  death,  succeeds  to 

1  Ludlow  V.  O'Neil,  29  Ohio  St.  182 ;  327 ;  Walsh  v.  Barton,  24  Ohio  St.  28. 

Richmond  v.  Gray,  3  Allen  (Mass.),  See  chapter — ,  Specific  Performance. 

27;  Gill  V.  Wells,  r,\)  Md.  492.  "Chambers  v.  Tulane,  9  N.  J.  Ec], 

2Shriver  v.  Slirivcr,  8G  N.  Y.  575.  146. 

^  Aston  V.  Robinson,  49  Miss.  348;  8 The  term  "ancestor,"  when  lised 

Quinn  v.  Roath,  37  Conn.  16.  with  reference  to  the  descent  of  real 

^  Butts  V.  Andrews,  136  Mass.  221;  property,  embraces  all  pereons,  col- 
Charleston  V.  Blohme,  15  S.  C.  124.  laterals  as  well   as  lineals,  through 

5  Shriver  v.  Shriver,  86  N.  Y.  575.  whom    an    inheritance    is    derived. 

« Dobbs  V.   Norcross,  24  N.  J.  E(i.  Wheeler  v.  Clutterback,  52  N.  Y.  67. 


52  CONTKACT   OF   SALE. 

his  rights  in  virtue  of  the  original  agreement,  as  strictly  as 
though  the  power  of  alienation  did  not  exist. 

The  right  thus  acquired  by  the  heir,  upon  the  death  of  the 
ancestor,  is  a  vested  interest,  which  he  may  immediately  con- 
vey by  deed,^  the  grantee  standing  in  his  place  and  holding 
the  land  as  he  did,  subject  to  the  lien,  if  an}^  of  the  adminis- 
trator.- 

§  7.  Tax  titles.  It  is  a  fundamental  proposition  that  all 
])roperty  is  subject  to  a  just  proportion  of  the  burdens  of  taxa- 
tion in  return  for  the  protection  which  the  state  affords.  A 
tax,  when  assessed,  is  in  one  sense  a  personal  debt,  and  may  be 
collected  by  an}'-  of  the  legal  methods  provided  by  law,  should 
the  state  choose  to  resort  to  such  remedies;  yet  it  is  not  an 
ordinary  debt,  for  it  takes  precedence  of  ail  other  demands, 
and  is  a  charge  upon  tlie  property,  Avithout  reference  to  the 
matter  of  ownership.  In  case  of  non-payment  of  the  debt,  the 
state,  in  the  exercise  of  tlie  perpetual  lien  which  by  virtue  of 
its  sovereignty  it  possesses  upon  all  taxable  lands  within  its 
limits,  may  seize  and  sell  the  land  charged  with  tlie  tax,  al- 
though there  may  be  prior  liens  and  incumbrances  upon  it,  and 
thus  enforce  payment  to  the  exclusion  of  all  other  creditors. 

The  title  raised  by  such  sale  is  a  purely  technical  as  distin- 
guished from  a  meritorious  title,  and  depends  for  its  validity 
upon  a  strict  compliance  with  all  the  requirements  of  law.^ 
If  the  land  claimed  under  such  a  title  was  subject  to  taxation, 
and  the  proceedings  under  the  law  have  been  regular,  and  the 
owner  has  failed  to  redeem  within  the  time  limited  by  law 
then  the  whole  legal  and  equitable  estate  is  vested  in  the  pur- 
chaser, and  a  new  and  perfect  title  is  established;  ^  but  no  pre- 

1  Hubbard  v.  Rickart,  3  Yt.  207;  the   validity  of  tax  titles  appear  to 

Walbridge  v.  Day,  31  111.  379.  be  fairly  deducible  from  the  reported 

■-Austin  V.  Bailey,  37  Vt.  219;  Van  cases:    (1)  Where  the  statute  under 

Syckle  v.    Richardson,    13    111.    171 ;  which    the  sale    is  made  directs  a 

Cockerel  v.  Coleman,  55  Ala,  583.  thing  to  be  done,  or  prescribes  the 

3  Altes  V.  Hinckler,  36  111.  265 ;  form,  time  and  manner  of  doing 
Hewes  v.  Reis,  40  Cal.  225;  Rivers  v.  anj-thing,  such  thing  must  be  done, 
Thompson,  43  Ala.  633.  and  in  the  form,  time  and  manner 

4  Smith  V.  Messer,  17  N.  H.  420;  prescribed,  or  the  title  is  invalid; 
Dunlap  V.  Gallatin  Co.  15  111.  7 ;  and  in  this  respect  the  statute  must 
Jarvis  V.  Peck,  19  Wis.  74;  Cram  v.  be  strictly,  if  not  literally,  complied 
Colting,  22  Iowa,  411.  The  follow-  with.  (2)  But  in  determining  what 
ing  principles  or   rules   for  testing  is  required  to  be  done,  the  statute 


SUBJECT-MATTEE.  53 

sumption  can  be  raised  to  cure  radical  defects  in  the  proceed- 
in<2:s,  and  the  proof  of  regularity  devolves  on  the  person 
asserting  the  titlo.^ 

A  tax  title,  though  bearing  sonic  resemblance  to  titles  de- 
rived under  judicial  and  execution  sales,  differs  in  this:  that  the 
latter  are  strictly  derivative  titles,  and  dependent  not  only  on 
the  legality  of  the  procedure  of  transfer  but  upon  the  acts  of 
former  owners.  A  tax  title,  on  the  contrary,  from  its  very  nat- 
ure, has  nothing  to  do  with  the  previous  chain  of  title,  nor 
does  it  in  any  way  connect  itself  with  it.  The  person  assert- 
ing it  need  go  no  further  than  his  tax  deed,  and  the  former 
title  can  neither  assist  nor  prejudice  him.  The  sale  operates 
upon  the  land  and  not  upon  the  title;  and  it  matters  not  how 
many  different  interests  may  have  been  connected  with  the 
title:  if  it  has  been  regularly  sold,  the  propert}'',  accompanied 
b}^  the  legal  title,  goes  to  the  purchaser.  Xo  covenant  run- 
ning with  the  land,  nor  warranty,  or  other  incident  to  the 
title,  as  a  title,  passes  to  the  purchaser,  but  he  takes  it  by  a 
new,  independent  and  paramount  grant,  which  extinguishes 
the  old  title  and  all  the  equities  dependent  upon  it.-  The 
statute  usually  pronounces  the  new  title  thus  acquired  a  fee; 
but  this  would  legally  follow^  even  though  the  statute  were 
silent,  whore  no  other  estate  is  reserved  in  the  deed.  It  must 
be  understood,  however,  that  the  clause  of  the  statute  which 
provides  that  a  conveyance  resulting  from  a  sale  shall  vest  in 
the  grantee  an  "absolute  estate  in  fee-simple"  does  not  mean 
that  such  estate  shall  vest  in  the  grantee  notwithstanding  the 
fact  that  the  law  had  not  been  complied  with  in  making  the 
sale,  but  refers  merely  to  the  quantity  of  the  estate  conveyed 
as  distinguished  from  a  lesser  estate.' 

Owing,  however,  to  the  complexity  of  the  procedure  em- 
ployed in  the  enforcement  of  tax  levies,  the  many  errors  which 
often  attend  it,  as  well  as  the  grave  questions  which  may  arise 

must  receive  a  reasonable  construe-  '  Oliver  v.  Robinson,  58  Ala.  46. 

tion;  and  where  no  particular  form  -  Neiswanger  v.  Gwynne,  13  Ohio, 

or  manner  of  doing  a  thing  is  pointed  74;  Ross  v.  Barland,   1   Pet.  (U.  S.) 

out,  any  mode  which  ctfects  tlie  ob-  G64.     See  Warvelle  on  Abstracts  of 

•ject  with  reasonable  certainty  is  suHi-  Title,  pp.  470  et  seq.,  for  a  very  full 

cient.  Hall,  J.,  in  Chandler  v.  Spear,  discussion  on  this  subject.    , 

22  Vt.  388.  3  Steeple  v.  Downing,  CO  Ind.  478. 


51  CONTRACT   OF   SALE. 

even  on  perfect  service,  a  tax  title  is  regarded  as  among  the 
poorest  evidences  of  the  ownership  of  land,  and  is  always  taken 
with  suspicion  and  viewed  with  jealousy.  When  a  tax  deed 
is  relied  upon  as  the  foundation  of  title,  all  the  antecedent 
steps  become  material. 

§  8.  Color  of  title.  A  person  is  properly  said  to  have 
color  of  title  to  lands  when  he  has  an  apparent  though  not  a 
real  title  to  the  same,  founded  upon  a  deed  which  purports  to 
convey  them  to  him;^  and  a  claim  to  real  property  under  such 
a  conveyance,  however  inadequate  it  may  be  to  carry  the  true 
title,  or  however  incompetent  the  grantor  may  be  to  convey 
such  title,  is  strictly  a  claim  under  color  of  title.-  Possession 
under  color  of  title  for  the  period  of  statutory  limitation  con- 
fers upon  the  holder  a  perfect  title  in  law;  and  where  one  takes 
possession  under  a  deed  giving  color  of  title,  his  possession 
may  be  transferred  to  subsequent  parties,  and  the  possession 
of  the  different  holders  may  be  united  so  as  to  make  up  the 
statutory  period,  the  operation  being  technically  called  tack- 
ing.* Titles  acquired  in  this  manner  must,  however,  show 
connected  possession  and  a  privity  of  grant  or  descent.  Those 
who  hold  lands  independently  of  previous  holders,  their  sev- 
eral possessions  having  no  connection,  cannot  so  tack  their 
possession  as  to  avail  themselves  of  that  which  has  gone 
before.^ 

§  9.  The  right  to  the  possession  of  title  deeds.  It  was 
the  invariable  custom  in  former  years  and  before  the  passage 
of  the  registration  acts,  upon  all  sales  of  real  property,  for  the 
vendor  to  produce  and  give  to  the  vendee  the  patents  and 
deeds  through  which  he  deraigned  title.  The  possession  of 
the  complete  chain  of  title  deeds  Avas  the  evidence  which  the 
vendor  produced  of  his  ownership;  and  on  a  sale  the  entire 
series  passed  to  the  purchaser,  as  well  for  the  purpose  of  show- 
ing ownership  in  the  vendor  as  that  the  vendor  should  have  no 
evidence  of  title  remaining  whereby  he  might  be  able  to  effect 

iSeigneuret  v.  Fahey,  27  Minn.  GO;  3 Cooper  v.  Orel,  60  Mo.  420;  Alex- 
Rigor  V.  Frye,  62  111,  507 ;  Hall  v.  ander  v.  Stewart,  50  Vt.  87 ;  Haynes 
Law,  102  U.  S.  461.  v.  Boardman,  119  Mass.  414. 

2Edgerton    v.    Bird,   6    "Wis.   527;  4  Crispen  v.  Hannavan.  50  Mo.  536 : 

Hinkley  v.  Greene,  52  111.  223;  Ford  Marsh  v.  Griffin,  53  Ga.  320;  Pegues 

V.  Wilson,  35  Miss.  504.  v.  Warley,  14  S.  C.  180. 


SUBJECT-MATTER.  55 

a  second  and  fraudulent  sale.  But  the  possession  of  the  deeds 
of  conveyance  is  now  coniparativcly  of  small  importance,  as 
the  public  records  disclose  to  purchasers  the  true  condition  of 
the  title,  and  furnish  them,  in  most  cases,  with  all  the  informa- 
tion necessary  or  desirable  to  a  full  and  thorough  understand- 
ing as  to  past  and  present  ownership.  For  this  reason  title 
deeds  are  seldom  demanded  and  rarely  furnished;  and  so  im- 
plicit has  become  the  reliance  of  the  people  upon  the  public 
records,  that  only  in  exceptional  instances  are  title  deeds  pre- 
served. 

But,  though  the  possession  of  deeds  has  become  of  minor 
importance,  the  legal  right  to  them  has  not  probably  changed. 
From  a  very  early  period  chancery  compelled  the  delivery  of 
deeds  when  necessary;  and  there  can  be  but  little  doubt  that 
a  pei'son  |)roperly  entitled  to  their  custody  may  still  come  into 
equity  and  obtain  a  decree  for  a  specific  delivery  of  them  if 
they  be  wrongi'ull}'"  withheld.^ 

» Wilson  V.  Rybolt,  17  lad.  391. 


CONTRACT   OF   SALE. 


CHAPTER   II. 

THE  PARTIES. 

Art.     I.  Persons  Sui  Juris. 

Art.    II.  Persons  under  Disability. 

Art.  III.  Persons  Incompetent. 

Art.  IV.  Fiduciaries. 

Akt.  I.     Persons  Sui  Juris. 


I  1.  Generally. 

2.  Vendors. 

3.  Vendees. 

4.  Parent  and  child. 

5.  Expectant  heirs. 

6.  Co-tenants. 

7.  Partners. 

8.  What  shall  be  considered  part- 

nership property. 


§  9.     How  affected  by  the  death  of 
partner. 

10.  Widow's  dower  in  partnership 

realty. 

11.  Corporations. 

12.  Assignees. 

13.  Assignors. 


§  1.  Generally.  It  is  an  elementary  principle  that  to  every 
legal  contract  tliere  must  be  two  contracting  parties  compe- 
tent to  contract.  This  is  an  indispensable  element;  and  while 
every  other  essential  requisite  may  be  present,  if  lacking  in 
this  particular,  the  contract  is  without  validity  and  incapable 
of  legal  enforcement.  The  legal  capacity  to  bind  oneself  to 
do  that  which  he  has  agreed  to  do  must  exist;  and  even  w^here 
the  obligation  arises  wholly  from  implication,  or  where  only 
passive  acquiescence  is  required,  the  capacity  to  act,  to  re- 
ceive, or  to  become  invested,  agreeably  to  prescribed  legal 
forms,  must  be  present  and  enter  into  the  contract  as  one  of 
its  constituent  and  indispensable  elements.^ 

§  2.  Vendors.  There  must  be  to  ev^ery  grant  a  grantor,  a 
grantee,  and  a  thing  granted.  The  latter  has  been  considered 
in  the  preceding  chapter,  and  the  former  will  constitute  the 
subject  of  the  succeeding  paragraphs  of  this.  If  a  conveyance 
of  land  has  resulted  as  the  effect  of  a  preliminary  treaty,  and 
represents  the  consummation  of  a  contract  previously  made 

1  See  Winslow  v.  Winslow,  C3  Ind.  8;  Musselnian  v.  Cravens,  47  Ind.  1 ; 
State  V.  Killian,  51  Mo.  80. 


PARTIES.  57 

and  concluded,  it  must  be  the  intelligent  and  capable  act  of 
the  parties  on  either  side;  if  it  has  been  induced  by  other 
motives,  or  if  the  f^rantor  has  assumed  to  act  witiiout  the  act- 
ual concurrence  of  the  vendee,  it  must  still,  so  far  as  he  is  con- 
cerned, be  the  result  of  the  exercise  of  free  will,  made  by  one 
who  is  capable  of  comj)rehendin<>;  the  nature  and  effect  of 
what  he  has  done.  A  vendor,  therefore,  to  successfully  ac- 
complisii  the  contractual  undertaking,  must  possess  the  mental 
capacity  to  give  the  necessary  legal  assent;  should  possess  the 
requisite  legal  age  to  render  his  engagements  binding,  and 
should  rest  under  no  disability  depriving  him  of  legal  capacity. 
Possessed  of  these  qualifications  he  may  make  any  disposition 
of  his  ])roperty  that  his  judgment,  fancy  or  caprice  may  ])rompt, 
provided  that  in  so  doing  he  contravenes  no  rule  of  law  or 
principle  of  equity;  and  even  though  lacking  in  legal  capacity, 
whether  through  inadequacy  of  age  or  legal  disability,  his 
grants  are  only  voidable,  and  not,  for  these  reasons,  void. 

§  3.  Vendees.  The  foregoing  remarks  concerning  the  vendor 
may  in  many  particulars  be  applied  to  the  vendee.  The  law 
presupposes  that  every  coiUract  is  the  intelligent  act  of  the 
parties  to  it,  entered  into  upon  a  fair  understanding  of  its  pur- 
port, and  consummated  with  a  knowledge  of  its  effects.  Yet  in 
the  conve\'ance  of  land  it  often  happens  that  the  vendee  is  but 
a  passive  recipient,  with  no  voice,  and  even  without  mind.  The 
conveyance  may  have  been  none  of  his  seeking,  and  at  the  time 
of  its  execution  unknown  to  him;  and  while  neither  the  bur- 
dens nor  advantages  of  property  can  be  thrust  upon  a  person 
without  his  assent,  yet  as  the  possession  of  property  is  so  uni- 
versally considered  a  benefit  the  absence  of  express  dissent  is 
ordinarily  presumed  to  indicate  assent  and  concurrence.' 

It  is,  of  course,  essential  to  the  validity  of  every  conveyance 
that  it  be  to  a  grantee  capable  of  taking  and  of  proper  identi- 
fication; yet  far  less  strictness  is  required  as  to  capacity,  etc., 
in  grantees  than  in  case  of  grantors,  and  few  of  the  disabiHtics 
which  may  encompass  the  latter  are  applicable  to  the  former. 
Coverture,  infancy,  lunacy,  etc.,  while  the}'  might  interfere 
with  a  contract  of  sale,  will  yet  form  no  bar  to  a  conveyance, 

1  Mitchell  V.  Ryan,  3  Ohio  St.  377;  Bivard  v.  Walker,  39  111.  413;  Daven- 
Bundy  v.  Iron  Co.  38  Ohio  St.  300;    port  v.  "Whistler,  4G  Iowa,  2S7. 


58  CONTKACT   OF   SALE. 

and  persons  laboring  under  such  disabilities  may  take  and 
hold  by  a  grant  equally  with  a  person  sui  juris. 

§  -i.  l*aroiit  aiid  child.  Probably  none  of  the  relations  of 
life  are  subject  to  greater  scrutiny,  in  all  matters  relating  to 
contracts  and  conveyances  of  land,  than  that  existing  between 
parent  and  child.  The  intimate  character  of  the  relationship 
neccssaril}'^  involving  many  features  that  are  utterly  wanting 
outside  of  such  relation,  and  the  facility  which  such  relation 
affords  for  the  commission  of  fraud,  both  with  respect  to  the 
parties  and  third  persons,  has  necessitated  this  vigilance  on 
the  part  of  courts,  and  in  some  particulars  created  a  code  of 
law  applicable  to  no  other  class. 

With  respect  to  their  contracts  with  each  other,  where  both 
stand  upon  an  equal  footing  and  both  possess  the  requisite  ca- 
pacity, they  are  not  distinguishable  from  others;  and  most  of 
the  decisions  involving  the  relation  have  arisen  in  cases  of 
tender  years  on  the  one  hand  or  old  age  and  decrepitude  on 
the  other,  and  nearly  all  have  turned  upon  the  question  of 
fraud. 

The  law  has  always  preserved  a  marked  distinction  between 
the  children  of  a  grantor  and  a  stranger;  and  while  the  parent 
has  no  right  to  make  voluntary  gifts  or  donations  to  his  chil- 
dren to  the  disadvantage  of  his  creditors  or  others  having 
legal  or  equitable  claims  upon  him  with  respect  to  his  prop- 
erty, yet  he  may  invest  them  with  the  title  to  property  suit- 
able to  their  circumstances  if  there  be  no  actual  or  constructive 
fraud. ^  And  such  conveyances,  notwithstanding  the  want  of  a 
valuable  consideration,  are  always  regarded  as  meritorious. 

So,  also,  though  a  parent  is  entitled  to  the  services  of  his 
children  Avhile  under  age,  he  may  nevertheless  waive  his- right 
and  make  such  services  the  consideration  of  a  contract  or 
promise,  and  may  in  good  faith  transfer  property  in  the  per- 
formance of  such  obligation  without  its  being  subject  to  a 
claim  on  the  part  of  the  other  children  to  consider  it  in  the 
light  of  an  advancement.'^ 

§  5.  Expectant  heirs.  As  a  rule,  all  contingent  and  execu- 
tory interests  and  contingent  estates  of  inheritance,  or  any 

'  Salmon  v.  Bennett,  1  Conn.  525 ;       -  Murrel  v.  Murrel,  2  Strob.  Eq.  (S. 
Nichols  V.   "Ward,    1   Head  (Tenn.),    C.)  148. 
323. 


PAUTIKS.  ./J 

other  species  of  estate  where  there  is  a  present  existin^j  right, 
although  to  take  effect  in  the  future,  and  even  then  only  on 
a  contingency,  arc  proi)er  subjects  for  contract  and  sale.'  But 
as  a  conveyance  or  grant,  to  be  effective,  must  be  founded  on 
an  existing  right,  vested  or  contingent,  it  necessarily  follows 
that  in  the  case  of  a  naked  or  remote  possibility,  or  what  the 
law  terms  a  ))ossibility  on  a  possibiiit}',  a  grant  or  uttem})ted 
grant,  as  such,  would  be  inoperative  and  void.-  The  word 
"possibility,"  as  used  in  this  connection,  has  a  specific  mean- 
ing in  law,  and  is  distinguished  from  its  broader  signification, 
where  it  might  properly  include  contingent  and  executory  in- 
terests which  are  objects  of  limitation,  and  denotes  nothing 
more  than  simple  expectation  —  a  mere  hope  of  succession,  un- 
founded in  any  limitation,  provision,  trust  or  legal  act  of  any 
kind.  It  is  in  this  sense  that  the  word  is  used  to  characterize 
the  expectancy  of  an  heir,  apparent  or  presumptive. 

IS'ot withstanding,  however,  that  the  conveyance  of  an  ex- 
jjcctancy,  as  such,  is  in  effect  a  transfer  of  a  mere  naked  ])os- 
sibilit}',  and  hence  inoperative  at  law  to  pass  any  estate  or 
interest  in  the  land,  yet,  when  made  l&na  fide  and  for  a  fair 
consideration,  it  will  be  upheld  in  equity  and  enforced  as  an 
executory  agreement  to  convey."  In  a  very  few  instances 
this  has  been  denied,^  but  the  weight  of  authority  sustains  the 
views  here  given.  Kor  is  there  anything  inconsistent  in  such 
rule,  for  if  the  conveyance  is  made  fairly  and  without  fraud; 
if  there  has  been  no  undue  influence;  if  the  vendor  was,  at 
the  time  of  its  execution,  capable  of  contracting  in  law,  fully 
understanding  its  purport  and  meaning;  and  if  the  considera- 
tion which  he  received  for  it  was,  under  the  circumstances, 

1  Woods  V.  Williams,  9  Johnr.  (N.  Munf.  (Vo.)  303;  Parsons  v.  El.v,  45 
Y.)  123;  Pelletreau  v.  Jackson,  11  111.  232;  Nesmith  v.  Dinsmore.  17  N. 
Wend.  (N.  Y.)  110.  H.   515;   McDonald   v.   McDonald,   5 

2  Hart  V.  Gresf?.  32  Ohio  St.  502;  Jones,  Eq.  (N.  C.)  211 ;  Mastin  v.  Mai- 
Boyntou  v.  Hubbard,  7   Mass.  112;  low,  65  N.  C.  695. 

Baylor  v.  Commonwealth,  40  Pa.  37;       ••See  Boynton  v.  Hubbard,  7  Mass. 

McDonald  V.  McDonald,  5  Jones.  Eq.  112,  where  Cliicf  Justice  Parsons  re- 

(N.  C.)  211.  fused    to    sanction     an    assignment 

3Varick  v.  Edwards,  1  HofT.  Ch.  made  bj' a  iiephew  in  the  life-time  of 

(N.    Y^.)    382;    Baylor    v.    Common-  his  uncle  of  his  expectant  interest  in 

wealth,  40  Pa.  37;  Powers'  Appeal,  tliat  uncle's  estate.     And  see  Low rj- 

63    id.   443;    Lewis    v.    Madisons,    1  v.  Spear,  7  Bush  (Ky.),  451. 


60  CONTRACT   OF    SALE. 

fair,  if  not  fully  adequate  —  such  conveyance  if  properly  made 
is  in  full  compliance  with  law,  and  is  inoperative  only  because 
there  was,  at  the  time  of  its  execution,  no  interest  in  the  vendor 
to  vv'hich  it  could  attach.  But  the  right  to  make  contracts 
for  the  future  conveyance  of  property  to  which  the  vendor 
has  no  present  title  must  be  conceded;  and  so,  in  accordance 
with  its  familiar  rules,  the  assignment  of  a  mere  expectancy 
will  be  given  effect  in  equity,  not  as  a  grant,^  but  as  a  contract, 
entitling  the  assignee  to  a  specific  performance  as  soon  as  the 
assignor  has  acquired  the  power  to  perform  it.- 

§  6.  Co-teuaiits.  Joint  tenants,  coparceners  and  tenants 
in  common  have  long  been  held  to  stand  in  such  a  relation 
of  trust  and  confidence  towards  each  other  as  to  preclude 
them  from  purchasing  an  outstanding  title  or  incurjbrance  for 
their  own  exclusive  benefit,  or  from  setting  up  such  title  as 
acjainst  their  co-tenants.  The  reason  for  this  is  said  to  be  that 
they  come  within  the  principle  which  prohibits  a  party  from 
purchasing  an  interest  where  he  has  a  duty  to  perform  incon- 
sistent with  the  character  of  a  purchaser;  that  their  community 
of  interest  produces  a  community  of  duty,  and  raises  mutual 
obligations  to  each  other.  Hence,  such  a  purchase  b}'-  either 
will  inure  to  the  joint  benefit  of  both,  the  purchaser,  however, 
beins:  entitled  to  contribution  from  his  co-tenant  for  the  lat- 
ter's  proportion  of  the  price  paid.* 

Tenants  in  common,  however,  are  considered  as  solely  and 
severally  seized,  their  freehold  interests  being  distinct  and  with 
no  privity  of  estate  as  regards  each  other.*  Hence  they  may 
convey  and  dispose  of  their  undivided  interests  to  a  stranger, 
the  purchaser  simply  taking  the  same  position  in  relation  to 
the  co-tenants  as  was  occupied  by  his  grantor.^ 

But  one  tenant  in  common  cannot  convey  an}'-  specific  part  of 
the  land  so  as  to  prejudice  the  rights  or  affect  the  interests  of 
the  other  co-tenants;^  hence  a  conveyance  of  part  of  the  land 

ilf    a    conveyance  is  made  with  » Swinburne  v.  Swinburne,  28  N.  Y. 
covenants  of  warranty  it  will  operate  5G8 ;  Picot  v.  Page,  26  Mo.  398 ;  Wea- 
to  pass  the  title  by  estoppel  if  the  ver  v.  Wible,    25  Pa.    St.  270;  Tits- 
land  descends  to  the  heir.      Rosen-  worth  v.  Stout,  49  111.  78. 
thai  V.  Mayhugh,  33  Ohio  St.  158 ;  *  Burr  v.  Mueller,  65  111.  258. 
Bohn  V.  Bohn,  78  Ky.  408.  »  Fisher  v.  Eslaman,  68  111.  78;  But- 

2  The  English  cases  hold  the  same  ler  v.  Roys,  25  Mich.  53. 

doctrine.  «  Porter  v.  Hill,  9  Mass.  34 ;  Pea- 


l'AKTIi:S.  CI 

by  motes  and  bounds  would  bo  practically  invalid  as  a^^ainst 
the  otlior  tenants  unless  their  assent  is  manifested  by  some 
))ro|)cr  act.'  Sucli  a  deed  is  uul  wholly  void,  however;  it  is 
operative  as  a<^ainst  the  f^'i'antoi",  and  will  bo  efTcctive  to  con- 
vey sucii  land  if  the  other  tenants  shall  afterwards,  by  release 
or  some  other  act,  assent,  or  there  be  a  subsequent  valid  par- 
tition by  which  the  land  so  granted  is  assigned  to  the  share  of 
the  grantor.^  Even  though  a  co-tenant  may  be  in  the  possession 
of  a  specific  portion  of  the  common  tract,  he  nevertheless  holds 
his  undivided  interest  therein  subject  to  the  contingencey  of 
the  loss  of  it,  if,  on  partition  of  the  general  tract,  the  special 
tract  should  be  allotted  to  one  of  his  co-tenants.  Hence,  as  one 
tenant  cannot  appropriate  to  himself  any  particular  part  of  the 
common  ])roiierty,  so  it  follows  that  any  conveyance  of  the  same 
bv  him  must  be  subject  to  the  ultimate  determination  of  the 
rights  of  the  other  tenants.  The  grantee  must  take,  therefore, 
subject  to  the  contingency  of  the  loss  of  the  premises,  if,  on 
])arlition  of  the  general  tract,  tho}^  should  not  be  allotted  to  the 
grantor.  Subject  to  this  contingency  the  conveyance  is  valid, 
and  passes  the  interest  of  the  grantor.*  So  also,  Avhile  such  a 
deed  can  have  no  effect  on  the  rights  of  the  co-tenants  in  re- 
spect to  partition,  it  will  yet  entitle  the  grantee  to  stand  in  the 
l)lacc  of  his  grantor  in  respect  to  the  possession  and  i)rofits  of 
that  part.'* 

§  • .  Partners.     Partnership  holdings  in  realty  are,  in  many 
respects,  governed  by  the  same  general  rules  that  apply  to 

l)ody  V.  Minot,  2-1  Pick.  (Mass.)  329;  cases,  upon  tlie  fact  that  if  sustained 
Ih-iswold  V.  Johnson,  5  Conn.  363;  it  would  seriously  affect  the  rights  of 
Duncan  v.  Sylvester,  24  Me.  483;  the  other  tenants  in  respect  to  parti- 
Stark  V.  Barrett,  15  Cal.  3G8.  tion;  compelling  them  to  take  a  share 
1  Jeffries  v.  Radcliff,  10  N.  H.  242;  in  each  of  the  several  parcels  of  the 
Whitton  V.  Whitton,  38  N.  II.  133.  common  property,  such  as  their  cu- 
What  shall  constitute  a  sudicient  as-  tenant  might  choose  to  mark  out.  in- 
sent  by  the  co-tenants  is  not  well  de-  stead  of  a  share  in  the  whole.  Bart- 
iined,  but  it  has  been  held  that  the  lett  v.  Harlow,  12  Mass.  347;  Duncan 
absence  of  objection  is  not  proof  of  v.  Sylvester,  24  Me.  482;  Griswold  v, 
dissent.  Great  Falls  Co.  v.  Worster,  Johnson,  5  Conn.  363;  Smith  v.  Ben- 
15  N.  II.  449;  Duncan  v.  Sylvester,  24  son,  9  Vt.  138;  and  see  4  Kent,  Com. 
Me.  482.  The  doctrine  that  a  convey-  §  308. 

ance  of  a  part  of  the  common  prop-  -  See  Primm  r.  Walker,  38  Mo.  94. 

erty    by    one    tenant    is  invalid    as  ^  Gates  v,  Salmon,  35  Cal.  570. 

against  the  others,   is  based,  in  all  *  Bullou  v.  Hale,  47  N.  II.  347. 


62  CONTRACT   OF    SALE. 

tenants  in  common;  and  for  most  purposes,  as  between  them- 
selves, this  is  regarded  as  the  character  of  their  ownership. 
But  as  between  the  partners  and  third  persons,  or  as  between 
themselves  where  the  rights  of  third  persons  are  concerned, 
the  relation  is  strictly  one  of  partnership,  and  the  property  is 
regarded  as  a  partnership  effect;'  that  is,  as  the  property  of 
the  firm,  and  not  the  individual  property  of  each  member  of 
the  firm.  The  effect  of  this  is  to  render  them  for  some  pur- 
poses joint  tenants,  with  the  right  of  survivorship  for  all  pur- 
poses of  holding  and  administering  the  estate  until  the  obli- 
gations of  the  firm  have  been  discharged.  Again,  partnership 
differs  materially  from  a  tenancy  in  common  in  reference  to 
the  power  of  disposal,  as  well  as  from  the  further  fact  that 
none  of  the  partners  have  any  claim  to  any  specific  share  or 
interest  in  the  real  estate  as  tenants  in  common  have,  but  only 
to  the  proportion  of  the  residue  which  shall  be  found  to  be  due 
them  respectively  upon  the  final  balance  and  adjustment  of 
tiieir  accounts,  and  the  liquidation  of  all  claims  upon  the  firm. 
There  is  another  principle  in  relation  hereto  which  probably 
has  received  more  universal  assent,  and,  as  a  rule,  seems  to 
admit  of  fewer  exceptions,  than  any  other  in  this  branch  of 
the  law,  and  that  is:  that  one  partner  during  the  continuance 
of  the  partnership  has  no  power  to  convey  the  real  estate  of 
the  firm,  either  by  deed  or  assignment;  nor  to  make  any  con- 
tracts in  relation  thereto  specificall}''  enforcible  against  the 

'>■  It  IS  by  reason  of  this  principle  ings  with  tlicm  as  such  partni?rs,  it 
that  partnership  real  estate  acquires  is  allowefl  to  assume  some  of  the 
the  character  of  personalty  and  is  characteristics  of  personalty;  yet  it 
governed  in  many  respects  by  the  must  be  seen  that  no  court  can,  by 
general  rules  applicable  to  that  class  an  arbitrary  rule,  transmute  real 
of  property.  See  Mauck  v.  Mauck,  estate  into  personal  property.  So 
54  III.  281;  Scruggs  V.  Blair,  44  Jjiss.  far,  therefore,  as  may  be  necessary 
40G:  Moderwell  v.  Millison,  21  Pa.  to  attain  the  ends  of  the  partnership 
St.  S57;  Arnold  v.  "Wainwright,  6  it  may  be  treated  as  personalty,  but 
Minn.  338.  But  this  doctrine,  inani-  for  every  other  purpose  it  remains 
festly  incongruous,  is  often  pushed  real  estate,  and  is  subject  to  all  the 
too  far:  and  the  statement,  frequently  principles  and  laws  applicable  there- 
made,  that  partnership  realty  is  to  be  to.  See  Black  v.  Black,  15  Ga.  445; 
treated  the  same  as  personalty  is  not  Scruggs  t.  Blair,  44  Miss.  456 ;  Fos- 
altogcther  true.  For  the  purpose  of  ter's  Appeal,  74  Pa.  St.  391.  Com- 
properly  adjusting  the  relations  of  pare  Lowe  v.  Lowe,  13  Bush  (Ky.), 
the  partners,  either  as  between  them-  C88. 
selves  or  third  persons  having  deal- 


PAKTIES.  63 

others;  and,  unless  expressly  authorized,  deeds  so  made  which 
profess  to  transfer  the  jiroperty  of  the  absent  partner  or  incur 
liabilities  in  regard  to  the  same  arc  absolutely  void  as  against 
the  partner  who  did  not  join.' 

It  is  further  to  be  observed  that  partners  in  lands  have  an 
equity  against  each  other  for  the  purpose  of  producing  equality 
among  themselves.  This  equity  fastens  itself  to  and  is  a  lien 
upon  their  respective  interests  in  such  lands;  and  neither  part- 
ner, nor  a  purchaser  from  him  with  notice,  can  deprive  his 
copartner  of  such  lien.  The  lien  survives  the  death  of  the 
partner,  and  may  be  enforced  by  his  heirs  or  personal  repre- 
sentatives where  the  inequality  between  the  ])artners  or  in- 
debtedness from  one  to  the  other  arose  from  transactions  ac- 
cruing in  tlie  life-time  of  such  partner.- 

§  8.  What  sliall  be  considered  partnership  property.  It 
is  an  old  and  well-established  rule  that  real  estate  purchased 
with  partnership  funds,  and  used  by  the  firm  in  its  business,  be- 
comes impressed  with  the  character  of  partnership  property, 
and  subject  to  all  its  incidents.''  The  fact  that  the  legal  title 
has  been  taken  in  the  names  of  the  individual  members  of  the 
firm  in  no  way  militates  against  this  rule,*  nor  is  it  absolutely 
indispensable  that  the  property  should  actually  be  used  for 
partnei-ship  purposes,  or  that  there  shall  have  been  a  positive 
agreement  making  it  partnership  property;  for  if  it  has  been 
paid  for  with  partnership  effects,  it  is  then  a  question  of  inten- 
tion whether  the  conve3'ance  is  to  have  its  legal  effect,  and  the 
parties  are  to  be  treated  as  tenants  in  common,  or  whether  the 
land  is  to  bo  regarded  as  partnership  property."'  To  solve  this 
question  of  intention  extrinsic  evidence  of  the  circumstances 

iRuffntT  V.  McConiiol,  17  111.  1^12;  Humph.  (Tenn.)  459;  Bryant  v.  Ilun- 

Jackson  v.  Stanford,  19  (ia.  14;  God-  ter,  G  Bush  (K\-.),  75. 

dard  y.  Renner,  57  Ind.  5:52.  ''Page  v.  Thomas,  43  Ohio  St.  38: 

2  Williams  v.  Love,  3  Head  (Tenn.),  Callumb  v.  Read.  24  N.  Y.  505;  Sher- 

80.  wood   V.  St.  Paul,  etc.  Co.  21  Minn. 

3Hiscock  V.   Phelps,  49  N.  Y.  97;  127;  Pugh  v.  Currie,  5  Ala.  446. 

Fall  River  Co.  v.  Borden,  10  Cush.  ^Fairchild   v.   Fairchild,  64  N.  Y. 

(Mass.)  407:  Sigourney  v.   Munn,  7  471;  Ware  v.    Owens,  43   Ala.  212; 

Conn.  11;  Uhler  v.  Semple,  20  N.  J.  Holmes  v.  Self,  79  Ky.  297;  Provi- 

Eq.  288;  Ross  v.  Henderson.  77  N.  C.  dence  v.  Bullock,  14  R.   I.  353;  and 

170;  Price  V.  Hicks.  14  Fla.5G5:  Bopp  see  King  v.  Weeks,  70   N.    C.  372; 

V.  Fox,  63  111.  540;  Ludlow  v.  Cooper,  Indiana  Pottery  Co.  v.  Bate.".  14  Ind. 

4    Ohio    St.   1;  Hunt    v.    Benson,  2  9;  Matlack   v.    James,  13   N.   J.  Eq. 


G-t  CONTRACT    OF   SALE. 

attend iiifj  the  purchase,  or  of  any  agreement  made  at  the  time, 
may  always  be  resorted  to;^  and  the  manner  in  which  the  ac- 
counts are  kept,  as  whether  the  purchase  money  was  severally 
charged  to  the  members  of  the  firm,  or  whether  the  accounts 
treat  it  the  same  as  other  firm  propert}^  purchase  money,  in- 
come, expenses,  etc.,  are  controlling  circumstances,  and  from 
these  circumstances  an  agreement  may  even  be  inferred.'^ 

The  question  derives  its  main  importance  from  the  priority 
to  be  given  to  creditors,  whether  of  the  firm  or  the  individuals 
composing  it,  and  is  essentially  one  of  construction  as  to  the 
intent  of  the  partners  in  making  the  purchase.  A  third  per- 
son who  purchases  or  takes  from  one  of  the  partners  a  mort- 
gage on  his  individual  interest  in  the  land  will,  if  the  property 
be  partnership  effects,  and  such  purchaser  or  mortgagee  has 
knowledge  of  the  same,  be  postponed  to  the  lien  of  a  firm  cred- 
itor. On  the  other  hand,  a  purchaser  has  a  right  to  rely  upon 
the  records;  and  if  the  purchase  is  made  in  good  faith  and  for 
value,  he  will  not  be  affected  by  any  equities  or  even  legal 
rights  of  which  he  has  no  knowledge,  and  which  such  records 
fail  to  disclose.^  But  while  a  purchaser  or  mortgagee  without 
notice,  finding'  the  lecral  title  in  the  names  of  the  individual 
partners,  will  be  protected  as  a  bona  Jide  puvchaser,  a  judgment 
creditor,  it  seems,  can  make  no  such  claim.  His  lien  will  ex- 
tend only  to  the  beneficial  interest  of  the  defendant  partner, 
and  this  interest  consists  only  of  the  residuary  share  of  such 
partner  after  the  partnership  accounts  are  settled  and  the  rights 
of  parties  inter  sese  adjusted,* 

128;  York   v.  Clemens,  41  Iowa,  95;  Scruggs  v.  Blair,  44  Miss.  <109;  Wil- 

Dewey  v.  Dewey,  35  Vt.  555.  lis   v.  Freeman,  35  Vt.  44 ;  Blake  v. 

1  A  different  rule  seems  to  prevail  Nutter,  19  Me.  16;  Duhring  v.  Duhr- 
in  Pennsylvania,  where  it  has  been  ing,  20  Mo.  174;  Russell  v.  Miller,  26 
held  that  the  legal  effect  of  the  deed  Midi.  1 ;  Mauck  v.  Mauck,  54  111.  281 ; 
cannot  be  affected  by  extrinsic  evi-  Fowler  v.  Bailley,  14  Wis.  125;  Jarvis 
dence.  See  Ebert's  Appeal,  70  Pa.  v.  Brooks,  27  N.  H.  37 ;  Lang  v.  War- 
St.  79;  Le  Fevre's  Appeal,  69  Pa.  St.  ing,  38  Ala.  625;  Davis  v.  Christian, 
122.  15  Gr.itt.  (Va.)  11 ;  Price  v.  Hicks,  14 

2  Fairchild  v.  Fairchild,  64  N.  Y,  Fla.  565 ;  Ross  v.  Henderson,  77  N.  C. 
471.  170;  Little  v.  Snedecor,  52  Ala.  167; 

3  Page  V.  Thomas,  43  Ohio  St.  38;  Dupuy  v.  Leavenworth,  17  Cal.  263; 
Lovejoy  v.  Bowers,  11  N.  H.  404.  Norwalk  Nat.   Bank   v.  Sawyer,  38 

*Page  V.  Thomas,  43  Ohio  St.  38;   Ohio  St.  339. 
York    V.     Clemens,    41    Iowa,    95; 


PARTIES.  05 

§  \).  How  aflfected  by  doalli  of  partner.  The  deatli  of  ono 
of  the  partners  operates  as  a  dissolution  of  the  firm,  and  the 
share  or  interest  of  such  deceased  partner  in  the  partnership 
real  estate  descends  to  his  heirs  or  passes  to  his  devisees  as  in 
other  cases  of  common  tenancy.'  But,  as  partnership  realty 
possesses  many  of  the  features  of  personalty,  and,  together 
with  other  assets,  is  regarded  as  a  trust  fund  for  the  payment 
of  tlie  (hibls  of  the  linn,  the  legal  title  whicli  dcsconds  to  tlio 
heirs  or  passes  to  the  devisees  is  impressed  with  the  same  trust. 
The  surviving  partner  is  clothed  with  the  power  of  executing 
this  trust,  and  to  that  end  is  permitted  to  manage  and  control 
such  property.  If  necessary,  he  may  sell  it  and  convey  to  the 
purchaser  not  only  the  legal  title  vested  in  himself,  but  also 
the  equitable  estate  which  he  holds  as  such  surviving  partner; 
and  if  such  sale  is  made  in  good  faith  and  fairness,  equity  will 
compel  the  holders  of  the  outstanding  legal  title  to  convey 
the  same  to  said  purchaser,  and  thus  complete  the  ownership.- 

It  was  formerly  a  vexed  question  whether,  after  the  disso- 
lution of  the  firm  by  the  death  of  one  of  the  members,  the 
debts  being  all  settled  and  no  purpose  of  the  firm  requiring  it, 
the  share  of  the  deceased  partner  in  the  land  should  still  re- 
tain its  character  of  personalty  and  pass  to  his  personal  repre- 
sentatives, or  should  descend  as  real  estate  to  his  heirs  at  law. 
The  principles  which  govern  tliis  branch  of  the  law^  as  admin- 
istered by  the  English  courts  of  equity  would  seem  to  regard 
a  deceased  partner's  interest  as  personalty  for  all   purposes,'' 

1  The  English  rule  is  to  the  con-  lueiits  adopted  by  the  chancellors  in 
trary,  and  partnership  realty  always  England  for  the  purpose  of  giving 
retains  the  character  and  qualities  of  effect  to  the  agreement  of  the  part- 
personalty,  ners,  and  is  said  to  have  originated 

2  Holland  v.  Fuller,  13  Ind.  195;  in  this  wise:  by  the  common  law,  on 
Buffum  V.  Buffuni,  49Me.  108;  Dupy  feudal  reasons,  land  could  not  be 
V.  Leavenworth,  17  Cal.  202;  Fowler  sold  for  the  payment  of  debts.  By 
V.  Baily,  14  Wis.  129;  Little  v.  Sned-  virtue  of  legislative  enactment,  the 
ecor,  53  Ala.  IG7;  Hewitt  v.  Rankin,  writ  of  elegit,  and  statutes  merchant 
41  Iowa,  35;  Drewry  v.  Montgomery,  and  staple,  subjected  land  to  the 
28  Ark.  256;  Willett  v.  Brown,  65  claim  of  creditors  in  a  modified  way: 
Mo.  138;  Whitney  v.  Catten,  53  Miss,  that  is,  by  giving  the  creditor  a  right 
689;  Ludlow  v.  Cooper,  4  Ohio  St.  9;  to  have  the  land  extended  at  a  yearly 
Shanks  v.  Kleine,  104  U.  S.  18.  value,  and  to  have  an  estate  and  re- 

3  This  is  one  of  the  artificial  refine-  ceive  the  rents  and  profits  until,  at 

5 


66  CONTKACT    OF    SALE. 

and  many  of  the  earlier  American  cases  hold  the  same  doc- 
trine; but  the  current  of  modern  decisions  has  steadily  tended 
in  the  other  direction,  and  the  rule  as  stated  in  the  opening 
of  this  paragraph  may  now  be  considered  as  fully  settled. 
The  rules  of  law  which  gave  rise  to  the  doctrine  in  England, 
and  were  the  foundation  upon  which  it  was  built,  have  little 
or  no  application  in  this  country.  Land  may  be  seized  and 
sold  on  execution  and  the  doctrine  of  survivorship  is  practi- 
cally abolished.  The  reason  of  the  rule  having  ceased,  there- 
fore, courts  seem  ever-more  inclined  to  the  opinion  that  the 
rule  itself  is  no  longer  applicable. 

§  10.  Widow's  (lower  in  partnership  realty.  As  the  heirs 
take  the  legal  title,  so  also  is  the  widow  of  a  deceased  partner 
entitled  to  dower  in  real  estate  which  constitutes  a  portion  of 
the  partnership  assets;  but  as  to  her,  the  same  as  to  the  heirs, 
the  property  is  regarded  as  personalty  for  the  purpose  of  pay- 
ing debts  and  adjusting  equities  between  the  partners,  and  her 
rights  will  only  attach  to  her  deceased  husband's  share  after 
the  payment  of  such  debts  and  adjustment  of  equities.^  Courts 
have  even  held  that  it  is  unnecessary  for  the  wives  of  partners 
to  join  with  them  in  the  execution  of  deeds  or  mortgages  of 
the  partnership  realty,  since  the  dower  right  did  not  attach  to 
specific  property,  but  only  to  whatever  residuum  might  be  left 
after  final  accounting.- 

the  extended  value,  the  debt  was  sat-  should  be  considered  and  treated  as 

isfied.     This,  however,  did  not  cause  personalty,  and  in  others  tlie  acts  of 

land  to  answer  the  purposes  of  trade  the  jiarties  furnislied  ground  for  the 

and  become  the  means  of  extended  inference  tliat  it  was  the  intention  to 

credit  as  fully  as  if  it  could  be  sold  impress  on  land  the  character  of  per- 

outright    like      personal      property,  sonalty  in  all  such   cases;   and  the 

Again,  land  held  in  joint  tenancy  was  courts  inclined  to   extend  them  by 

subject  to  tlie  doctrine  of  survivor-  construction  and  implication.    It  was 

ship,  by  which,  on  the  death  of  either  held   in  equity  that  the  agreement 

tenant,   the  whole    estate   belonged  and  intention  of  the  parties  should 

absolutely  to  the  surviving  tenant,  be  carried  into  effect,  and  to  do  so.the 

This  was  a  great  drawback  to  the  land  must  be  considered  and  treated 

formation  of  copartnerships  in  which  as  personalty. 

the  business  made  it  necessary  for  the  i  Huston  v.  Neil,  41  Ind.  505;  Kil- 

tirm  to  own  land.     To  obviate  these  let  v.  Brown,  65  Mo.  138;  Cobble  v. 

difficulties,  the  articles  of  copartner-  Tomlinson,    50    Ind.    550;    Barry  v. 

ship  in  many  instances  contained  an  Briggs,  22  Mich.  201. 

agreement  that  the  land  required  and  -  Huston  v.  Neil,  41  Ind.  505. 
owned  as  part  of  the  stock  in  trade 


TAKTIES,  C7 

§  11.  Corporations.  Among  the  original  powers  insepa- 
rably incident  to  every  corporation  was  that  of  purchasing 
lands  and  of  holding:;-  them  for  the  benefit  of  themselves  and 
their  successors.'  IJut  this  common-law  right  was  restrained 
in  England  at  a  very  early  day  by  a  series  of  laws  called 
"statutes  of  mortmain."  These  laws  were  designed  to  re- 
press the  grasping  and  rapacious  spirit  of  the  church,  which 
was  absorbing  in  perpetuity  the  best  lands  in  the  kingdom; 
and  were  called  statutes  of  mortmain  because  their  object  was 
to  prevent  the  holding  of  lands  in  the  dead  clutch  of  ecclesias- 
tical corporations,  which,  being  composed  of  members  dead  in 
law,  rendered  the  property  unproductive  to  the  feudal  lord  as 
well  as  to  the  public.-  This  system  of  restraint,  though  orig- 
inally confined  to  religious  corporations,  was  subsequently  ex- 
tended to  civil  or  lay  corporations  also. 

The  English  statutes  of  mortmain  have  never  been  re-enacted 
in  this  country,^  though  in  some  states  they  have  been  held  to 
have  effect  so  far  as  the  changed  conditions  of  our  political 
system  would  allow;  yet  their  policy  has  been  retained,  and  is 
manifest  in  the  general  and  special  enactments  of  every  state. 
The  right  of  corporations  to  acquire  and  transmit  property  is 
now  generally  regarded  as  a  statutory  one  in  the  state  of  their 
creation,*  and  in  other  states  is  based  onl}'  upon  the  comity 
between  the  states.'  In  the  latter  case  it  is  a  voluntary  act  of 
grace  of  the  sovereign  power,**  and  is  inadmissible  when  con- 
trary to  its  policy  or  prejudicial  to  its  interests.^ 

§  12.  Assiii^nees.  When  a  contract  of  sale  has  been  as- 
signed, the  vendor  not  being  a  party  to  the  assignment,  no 
duty  devolves  on  the  vendor  to  hunt  up  the  assignee  to  tender 
a  deed:  it  is  sufficient  if  he  tenders  it  to  the  original  vendee; 
and  it  is  the  duty  of  the  assignee  to  make  a  tender  of  the 
money  and  demand  a  deed  at  or  within  the  time  designated  in 

11  Black.  Com.  475;  2  Kent,  Com.  sCiirroll  v.  East  St.  Louis,  67  111. 

281,  508;  St.  Clara  Academy  v.  Sullivan, 

n  Black.  Com.  479;  Co.  Lit.  2  b;  IIG  111.  375. 

Ang.  &  Ames,  Corp.  §  148.  •'Ducat    v.    Chicago,   48    111.    172; 

3  Except  the  state  of  Pennsj-lvania.  State  v.  Fosdick,  21  La.  Ann.  434. 

*  State  V.  Marshfield,  23  N.  J.  L.  7  Carroll  v.  East  St.  Louis,  67  III. 

510;  Downing  v.  Marshall,  23  N.  Y.  568. 
306. 


68  CONTKACT    OF    SALE. 

the  contract,  if  time  is  of  the  essence  of  the  agreement,  or 
within  a  reasonable  time  if  time  is  not  material;  and  if  the 
assignee  fails  to  do  so  the  vendor  may  treat  the  contract  as 
abandoned,  and  equity  cannot  be  invoked  by  the  assignee  to 
enforce  a  specific  performance.^ 

It  is  further  to  be  observed  that  the  assignee  of  a  bond  or 
agreement  for  conveyance,  being  only  the  purchaser  of  an 
equity,  will  take  such  title  burdened  with  all  its  imperfections 
and  subject  to  any  equities  or  defenses  that  may  exist  against 
it;  and  this,  too,  notwithstanding  he  has  purchased  in  good 
faith,  for  a  valuable  consideration,  and  without  notice  thereof.- 
A  subsequent  purchaser,  it  is  true,  will  be  protected  against 
latent  equities,  but  this  protection  extends  only  to  those  who 
by  conveyance  have  been  clothed  with  the  legal  title.  The 
rule,  stated  in  a  more  comprehensive  form,  is  that,  as  between 
parties  holding  equal  equities,  courts  will  not  interfere  to 
change  or  affect  the  legal  title  or  the  rights  of  the  parties  at 
law,  simply  because  nothing  is  gained  in  equity  thereby,  the 
one  having  as  good  right  in  equity  as  the  other.  In  all  cases 
where  neither  party  has  the  legal  title,  and  the  equities  are 
equal,  the  well-known  maxim  prevails  that  he  who  is  first  in 
time  is  first  in  right.' 

§13.  Assignors.  While  the  assignee  of  a  bond  or  agreement 
to  convey  takes  it  subject  to  any  equities  that  may  exist  against 
the  assignor,  yet,  if  the  assignment  is  absolute  and  unconditional 
and  made  upon  a  valuable  consideration,  the  assignor,  where 
there  is  no  stipulation  to  that  effect,  undertakes  by  implica- 
tion that  he  is  the  owner  of  the  instrument,  and  has  an  inde- 
feasible right  to  demand  what  the  bond  or  agreement  calls 
for.  If  he  has  not  such  right,  there  is  a  breach  of  this  implied 
undertaking  the  moment  the  assignment  is  made;  and  it  is  not 
necessary  to  fix  his  liability  that  this  want  of  right  in  the  as- 
signor should  be  established  by  suit.  And  it  seems  that  though 
the  assignee  receives  it  with  notice  or  knowledge  of  the  adverse 
claims  of  other  parties,  if  he  did  not  agree  to  risk  the  claims 
of  such  third  persons,  he  may  still  recover  against  his  assignor ; 

iHedenberg  v.  Jones,  73  111.  149.  ^Anketel  v.  Converse,  17  Ohio  St. 

2  Smith  V.  Tucker,  25  Tex.  60;  Fol-   11 ;  Elstner  v.  Fife,  33  Ohio  St.  878. 
lett  V.  Reese,  20  Ohio,  546. 


I'AUTIKS.  CO 

the  undertaking  created  by  the  assignment  being  sufliciently 
comprehensive  to  impose  a  responsibility  against  such  claims 
in  the  absence  of  an  express  waiver.^ 

But  this  is  the  full  extent  of  the  assignor's  liability.  There 
is  no  implied  covenant,  on  his  part,  of  title  to  tlie  land  in  the 
vendor;  all  that  can  be  implied  is  a  warranty  that  the  assignor 
owned  the  contract,  and  had  the  right  to  assign  it,  and  that  the 
signatures  thereto  are  genuine.^ 

1  Eramerson  v.  Clay  well,  14  B.  Mon.       2  Thomas  v.  Barton,  48  N.  Y.  193. 
(Ky.)  18. 


70  CONTKACT   OF   SALE. 


Art.  1 1.     Persons  under  Disability. 

§  1.     Aliens. 

2.  Infants. 

3.  Married  women. 

§  1.  Aliens.  By  the  law  of  nations,  a  contract  between  a 
citizen  and  an  alien  enemy  is  void  and  incapable  of  legal  en- 
forcement.^ This  is  the  universally  recognized  rule,  and  pro- 
ceeds from  the  principle  that  it  is  impolitic  and  dangerous  to 
permit  an  enemy  to  recover  or  obtain  from  a  citizen  money 
or  other  property  which  may  tend  to  diminish  the  resources 
of  the  country  for  defense,  or  perhaps  be  used  in  hostility  to 
it.  But  further  than  this  it  is  impossible,  owing  to  the  diver- 
gent character  of  local  laws,  to  formulate  any  rule  in  regard 
to  aliens  that  shall  be  of  general  application  in  all  parts  of 
the  Union. 

It  was  formerly  held  to  be  against  public  polic}''  to  allow 
any  person  owing  no  allegiance  to  the  government  to  own 
lands  within  its  jurisdiction;  and  this  doctrine  still  prevails, 
though  modified  somewhat  in  its  harshness,  in  a  number  of 
the  states.  As  a  rule,  however,  the  tendency  is  in  the  con- 
trary direction,  and  the  enlightened  policy  of  the  age  has  been 
to  remove  all  restrictions  from  the  transfer  of  land.  In  a  ma- 
jority of  the  states  aliens  may  take,  hold,  transmit  and  con- 
vey in  the  same  manner  as  a  citizen;^  in  a  few  the  privilege 
is  confined  specifically  to  alien  friends ;  ^  in  others  to  aliens 

^Brooke  v.  Filer,  35  Ind.  402;  ents,  has  no  application  to  the  con- 
Fisher  V.  Kurtz,  9  Kan.  501 ;  Clem-  veyance  of  real  estate  situated  in  one 
ents  V.  Graham,  24  La.  Ann.  446;  belligerent  territory  by  a  citizen  of 
McCormick  v.  Arnspiper,  38  Tex.  anotlier.  Shaw  v.  Carlile,  9  Heisk. 
569 ;  Hill  V.  Baker,  33  Iowa,  302.  The  (Tenn.)  594;  Conrad  v.  Waples,  96 
fact  that  the  agent  selling  the  prop-  U.  S.  290. 

erty  was  within  the  section  to  which  2  xhis  is  the  case  in  Alabama,  Col- 

the  vendee  belonged  has  been  held  orado,  Florida,   Illinois,  Iowa,  Kan- 

not  to  vary  or  alter  the  rule.     Dillon  sas,    Maine,    Massachusetts,    Minne- 

V.  United  States,  5  Ct.   of  CI.   586.  sota,  Mississippi,  Missouri,  Nebraska, 

But  while  the  volume  of  authority  North  Carolina,  Ohio,  Oregon,  Rhode 

holds  that  conveyances  of   land  to  Island  and  Wisconsin, 

alien    enemies    are    void,  there  are  *  This  is  so  of  New  York  and  Vir- 

cases  which  hold  that  the  rule  of  ginia. 
non-intercourse,  as  between  belliger- 


PAUTIES.  71 

actually  resident  in  the  state/  or  the  United  States,-  and  in 
some  cases  is  only  extended  to  resident  aliens  wlio  have  de- 
clared their  intention  of  becoming  citizens.'  Again,  other 
states,  while  conceding  the  privilege  of  the  acquisition  by  pur- 
chase, den}''  the  right  of  inhei'itance,*  or,  if  this  is  permitted, 
compels  the  alien  to  make  his  claim  of  property  within  a  lim- 
ited time,*  or  limits  the  period  during  which  he  is  allowed  to 
hold  it."  In  a  few  states  the  amount  and  value  is  limited,"  and 
in  one  an  alien  is  practically  debarred.^ 

The  rule  of  the  common  law  permits  an  alien  to  take  land 
by  purchase,^  either  deed  or  devise,'"  and  to  hold  it  against  all 
persons  but  the  state  ;*^  and,  as  the  disabilities  of  the  alien  rest 
upon  the  fact  of  alienage  and  not  upon  his  character,  there  is 
practically  no  distinction  in  this  respect  between  an  alien 
friend  and  an  alien  enem3\^-  The  title  held  by  him  is  not  sub- 
ject to  collateral  attack,^'  and  may  be  sold  and  conveyed  before 
any  action  has  been  taken  b}"-  the  state,  and  the  purchaser  will 
hold  the  same  in  all  respects  as  though  the  conveyance  had 
been  made  by  a  citizen.'*  It  is  a  further  rule,  however,  that  an 
alien  can  acquire  no  title  by  operation  of  law.  Having  no  in- 
heritable blood  he  is  incapable  of  taking  by  descent;'*  and 
where  he  stands  in  such  a  position  that  he  would  take  as  heir 
but  for  his  alienage,  the  title  vests  in  the  next  of  kin  capable 
of  inheriting,  or  escheats  to  the  state.'^ 

But  these  rules  now  possess  little  efficacy,  and  are  state- 

1  As  in  Arkansas,  Michigan  and  lO  Yox.  v.  Sauthack,  12  Mass.  143 ; 
New  Hampshire.  Guyer  v.  Smith,  23  Md.  239. 

2  Connecticut.  "  Ramires    v.    Kent,    2    Cal.    558; 
3Delaware,    Kentucky    and    New    Phillips  v.  Moore,  10  Otto  (U.  S.),  208; 

York.  Scanlan  v.  Wright,  13  Pick.  (Mass.) 

*  As  in  Kentucky.  523. 

*  California  requires  proof  in  five  '2  Read  v.  Read,  5  CaU  (Va.),  207; 
years.  Stephens'  Heirs  v.  Swann,  9  Leigh 

6  As  in  Indiana,  where  he  is  allowed    (Tenn.),  404. 

only  eight  years  after   final  settle-  ^^Norris  v.  Hoyt,  18  Cal.  217. 

ment  of  the  estate.  n  Ilalstead    v.    Conimissionei*s,    56 

7  Georgia  and  Pennsylvania.  Ind.   303;  Montgomery  v.   Dorion,  7 

8  Vermont.  N.  H.  475. 

9 Doe     V.    Robertson,    11    AVheat.       '^ Mussey  v.  Pierie,  24  Me.  559 ;  Orr 
(U.  S.)  332 ;  Montgomery  v.  Dorion,    v.  Hodgson,  4  Wheat.  (U.  S.)  453. 
7N.  H.  475;  Smith  v.  Zaner,  4  Ala.       '"Jackson     v.    Jackson,    7    Johns. 
99;  Sheaffle  v.  O'Neil,  1  Mass.  25G.       (N.  Y.)  214;  White  v.  White,  2  Met. 

(Ky.)  185. 


72  CONTKACT   OF    SALE. 

ments  of  the  law  as  it  was  rather  than  as  it  is.  A  clearer 
perception  of  the  rights  of  property  now  prevails,  and  a  more 
enlightened  spirit  of  public  policy  has  swept  away  the  greater 
portion  of  the  arbitrary  and  ofttimes  unjust  discriminations 
and  restrictions  that  formerly  hampered  the  acquisition  and 
sale  of  landed  estates.  In  most  of  the  states  an  alien  is  not 
distinguished  from  a  citizen,  so  far  as  respects  his  rights  of 
property  and  his  ability  to  make  and  enforce  contracts  in  regard 
to  the  same;  and,  generally,  for  the  procurement  of  his  rights 
or  the  redress  of  his  wrongs  he  stands  on  the  same  ground  as 
the  citizen,  equal  before  the  law.  That  such  should  be  the 
law  seems  only  in  consonance  with  modern  ideas  of  justice, 
and  that  such  is  the  law  is  attested  by  the  statute  books  of 
many  states;  yet,  within  a  very  few  years,  a  reactionary 
spirit  seems  to  have  set  in,  induced  by  the  aggressive  attitude 
of  numerous  wealthy  foreigners,  who,  by  purchasing  and  re- 
taining large  tracts  of  land  in  the  western  states  and  terri- 
tories, have  endeavored  to  plant  in  the  United  States  the 
system  of  landed  estates  that  has  become  so  odious  in  many 
parts  of  Europe.  The  principle  of  "  landlordism,"  as  under- 
stood by  the  people  of  Great  Britain,  is  certainly  not  in  accord 
with  the  genius  and  spirit  of  our  institutions,  and  its  blighting 
effects  upon  the  peasantry  of  the  old  world  are  only  too  ap- 
parent even  at  this  distance.  That  some  of  the  states,  alarmed 
at  the  concentration  of  thousands  of  their  broad  acres  in  the 
ownership  of  the  subjects  of  a  foreign  power,  and  viewing 
with  apprehension  the  reduction  of  its  own  citizens  to  the  grade 
of  tenants  of  a  foreign  landlord,  should  have  taken  steps  to 
check  the  evil,  is  not  strange;  and  hence  we  find  tolerant  states 
like  Illinois,  which  for  years  has  removed  every  bar  to  the  ac- 
quisition of  its  lands,  passing  stringent  laws  to  restrict  the  pur- 
chase of  land  by  aliens.^  That  the  action  of  Illinois  will  become 
contagious  there  is  no  room  for  doubt;  but  that  such  a  re- 
strictive  policy  will  be  retained  seems  equally  doubtful.^ 

1  Gen.  Laws  111.  1887.  States  and  of  the  state  wherein  they 

2  The  federal  constitution  nowhere  reside,"  Congress  has  also  furnished 
defines  citizenship,  but  the  fourteenth  a  definition  in  section  1992  of  the  Re- 
amendment  provides  that  "all  per-  vised  Statutes,  which  says,  "all  per- 
sons born  or  naturalized  in  the  United  sons  born  in  the  United  States,  and 
States,  and  subject  to  the  jurisdic-  not  subject  to  any  foreign  power,  ex- 
tionthereof,are  citizens  of  the  United  eluding  Indians  not  taxed,  are  de- 


PARTIES.  73 

§2.  Infants.  Tlic  cifrc  of  legal  competency  lias  been  gen- 
erally fixed  by  the  statute  at  twenty-one  years;*  and,  except 
under  certain  limitations,  persons  who  have  not  attained  this 
age  arc  inca|)able  in  law  of  making  binding  contracts.  By  the 
technical  rules  of  the  common  law  in  cases  of  executory  con- 
tracts the  infant  may,  in  gcnei-il,  not  only  refuse  to  perform 
them  during  his  infancy,  but  may  disalTirm  them  after  ho 
comes  of  age,  leaving  the  other  party  without  a  remedy;  and 
even  when  the  contract  has  been  executed,  the  rifrht  of  disaf- 
firmance  may  still  be  exercised  either  during  minority  or  within 
a  certain  pci-iod  after  attaining  majority.  These  are  the  uni- 
versally recognized  rules  in  regard  to  contracts  generall}'^;  and 
under  them  a  contract  b}"  a  minor  for  the  purchase  or  sale  of 
real  estate  cannot  be  enforced  against  him,  if  he  sees  fit  to 
repudiate  it  after  attaining  his  majority.  That  the  contract 
has  been  executed  does  not  materially  alter  the  status  of  the 
parties;  for  the  same  reasons  that  permit  the  infant  to  repudi- 
ate his  executory  contracts  allow  him  to  disaffirm  such  as  have 
been  executed,  and  no  convc3'ance  made  by  him  during  his 
minority  will  be  binding  upon  him  after  he  arrives  at  age.^ 
During  the  interval  between  the  execution  of  the  instrument 
and  the  attainment  of  majority,  the  contract  or  conveyance  can 
neither  be  said  to  be  void  or  valid ;  nor  can  any  act  of  his  im- 
part to  it  either  character.  It  is  simi)l3'^  voidable,  and  so 
remains  until  he  shall  decide  the  question  for  himself  after  he 
becomes  of  age.' 

The  rule  appears  to  be  inflexible;  and  it  makes  no  difference 
that  the  contract  was  honestly  entered  into  by  the  adult  party 
supposing  the  infant  to  be  of  full  age  and  competent  to  con- 

clared  to  be  citizens  of  the  Unitod  Cumniiiigs    v.    Powell,    8    Tex.    80; 

States."  Green  v.  Green,  69  N.  Y.  5o3 ;  Boston 

1 A  departure  from  this  rule  is  ob-  Bank  v.  Chamberlin,  15  Mass.  220; 
served  in  many  i?tates  in  tlie  case  of  Kline  v.  Beebe,  6  Conn.  494;  Dear- 
females,  who  are  permitted  to  attain  born  v.  Eastman,  4  N.  H.  441 ;  Jen- 
majority  at  the  af^oof  cigiiteen  3'ears;  kins  v.  Jenkins,  12  Iowa,  195:  Chap- 
but  within  this  ago  there  is  no  dilfer-  man  v.  Chapman,  13  Ind.  390:  Fer- 
ence  in  tiie  application  of  the  ac-  gusen  v.  Forgusen,  ITMo.  347:AValkcr 
cepted  principles  governing  the  .s7(<///.s  v.  Ellis,  12  111.470. 
of  infanc}'.  'Dnnton  v.  Brown,  31  ^lich.    182; 

2Harrod  v.    Meyers,  21  Ark.  592;  Keil  v.  Healy,  84  111.  104. 


74  CONTRACT   OF   SALE. 

tract,  nor  that  his  belief  was  created  by  the  fraudulent  repre- 
sentations of  the  infant  at  the  time  the  contract  was  made 
that  he  had  attained  his  majority.  Such  representations  would 
not  create  an  estoppel,  and  the  infant  would,  notwithstanding, 
still  be  able  to  disaflSrm  on  becoming:  of  ao:e.^  The  deed  of 
an  infant,  however,  is  by  no  means  inoperative,  and  will  suf- 
fice to  transmit  title  with  all  its  incidents.-  If  he  takes  no 
steps  to  avoid  during  the  period  allowed  by  law  the  title  be- 
comes unassailable  for  this  cause;,  and  while  mere  acquiescence 
during  this  period  cannot  be  construed  into  a  confirmation,' 
there  are  many  cases  where  this,  in  connection  with  other  cir- 
cumstances, have  been  held  to  establish  a  ratification.*  "Where 
no  specific  time  is  fixed  by  statute  —  and  this  is  the  case  in 
most  of  the  states  —  it  has,  in  a  number  of  instances,  been, 
held  that  silent  acquiescence,  unaccompanied  by  other  circum- 
stances, for  any  period  shorter  than  that  prescribed  by  the 
statute  of  limitations,  would  be  insufiicient  to  bar  the  right 
of  disaffirmance;'  but,  on  the  other  hand,  a  large  and  equally 
well-considered  class  of  cases  maintain  that,  if  the  infant  in- 
tends to  avoid  or  disaflBrm,  he  must  make  his  election  within 
a  reasonable  time  after  the  removal  of  his  disability;^  and 

1  Merriamv.  Cunningham,  11  Cush.  v.  Parr,  20  Ark.  600;  Baker  v.  Ken- 

(Mass.)  40;  Stud  well  v.  Baker,  54  N.  nell,  54  Mo.  82. 

Y.  249 ;  Conrad  v.    Lane,  26  Minn.  *  See  Hartnian  v.  Kendall,  4  Ind. 

389;    Gilson    v.    Spear,    38  Vt.  311;  405;  Cresinger  v.  Lessee  of  AVelch, 

Lackman  V.  Wood,  25Cal.  147;  Cook  15  Ohio,    193;  Fergusen  v.  Ball,  17 

V.  Toombs,  36  Miss.  685 ;  Wieland  v.  Mo.  374 ;  Bostwick  v.  Atkins,  3  N.  Y. 

Kobick,  110  111.    16.     In  this  latter  53.     As  where  the  infant,  after  liis 

case  the  infant  stated  in  her  deed  majority,    has    seen    tbe    purchaser 

that  she    was   "  unmarried    and  of  making  valuable  improvements  and 

age,"  and  indeed  only  lacked  a  few  said      nothing      in      disaffirmance, 

months  of  majority;  but  the  defense  Wheaton  v.  East,  5  Yerg.  (Tenn.)  41. 

of  infancy  was  held  good.     Compare  Or  where,  after  becoming  of  age,  he 

Kilgore  v.  Jordan,  17  Tex.  341.     Nor  receives  from  his  grantee  a  lease  of 

is  there  any  difference  in  this  respect  part  of  the  land.     Irvine  v.  Irvine,  9 

between  a  conveyance  and  a  relin-  Wall.  (U.  S.)  617. 

quishment  of  dower.    Watson  v.  Bil-  ^  Peterson    v.   Laik,   24    Mo.    541 ; 

lings,  38  Ark.  278.  Davis  v.  Dudley,  70  Mo.  236 ;  Hale 

2Irvinev.  Irvine,  9  Wall.  (U.S.)  617;  v.  Gerrish,  8  N.  H.  374;  McMurry  v. 

Worcester  V.  Eaton,  13  Mass.  371.  McMurry,   66  N.  Y.   175;   Irvine  v. 

SBoody  V.  McKenny,  23  Me.  517;  Irvine,  9  Wall.  (U.  S.)  617. 

Proutv.  Wiley,  28  Mich.  164;  Vaughn  6  Thompson  v.  Boyd,  13  Ala.  419; 


PAETIES.  75 

while  specific  performance  will  not  usually  bo  enforced  against 
one  out  of  possession,  yet,  if  after  coming  of  age  Le  has  en- 
tered or  continues  to  hold  and  enjoy  the  property  or  has  re- 
ceived benefits  therefrom,  it  will  amount  to  confirmation  on 
his  part,  and  he  will  not  be  permitted  to  avoid  the  sale  and 
refuse  payment  or  reclaim  the  consideration  already  paid.' 

It  must  further  be  observed  that  the  privilege  of  infancy  is 
not  in  all  respects  personal  to  the  infant;  and  contracts,  grants 
or  deeds  by  a  matter  in  writing,  and  which  take  effect  by  de- 
livery of  his  hand,  are  voidable  not  only  by  himself  during  his 
life-time,  but  also  by  his  heirs,  or  those  who  have  his  estate, 
after  his  decease;  and  his  heirs  may  exercise  the  same  rights 
of  disaffirmance  within  the  same  time  that  the  infant  himself 
mifjht  if  livinfj.- 

§  3.  31arried  women.  It  was  among  the  earliest  formu- 
lated rules  of  the  common  law  that  the  legal  existence  of  a 
woman  upon  her  marriage  became  suspended,  and  thence- 
forward during  the  coverture  was  merged  entirely  in  that  of 
the  husband.  As  a  consequence  she  was  without  capacity  to 
take  or  hold  real  estate  or  to  make  any  valid  contracts  in  re- 
spect to  the  same,  and  all  her  property  became  vested  in  the 
husband.  Equity  early  intervened  to  mitigate  the  austerity  of 
this  rule,  and  the  progressive  spirit  of  the  law  itself  did  much 


Kline  v.  Beebe,  6  Conn.  494;  Hast-  Boyd  v.  McKenny,  23  Me.  517;  Be- 
ings V.  Dollarhide,  24  Cal.  lOo;  Rich-  lano  v.  Blake,  11  Wend.  (N.  Y.)  85; 
ardson  v.  Boright,  9  Vt.  368 ;  Hart-  Callis  v.  Day,  38  Wis.  643 ;  Skinner 
man  v.  Kendall,  4  Ind.  403;  Harris  v.  ilaxwell,  66  N.  C.  45;  Ck)rey  v. 
V.  Cannon,  6  Ga.  382.  In  Blanken-  Burton,  32  31icli.  31 ;  Barnaby  v. 
ship  V.  Stout,  25  111.  132,  three  years  Barnaby,  1  Pick.  (Mass.)  221;  Biglow 
was  held  to  be  a  reasonable  time  in  v.  Kinney,  3  Vt.  353;  and  see  the 
which  to  disaffirm,  and  the  rule  has  chapters  on  "  Rescission  "  and  "  Spe- 
since  been  followed  in  that  state.  In  cific  Performance." 
Goodnow  V.  Empire  Lumber  Co.  31  -  111.  Land  and  Loan  Co.  v.  Bon- 
Minn.  468,  an  unexplained  delay  of  ner,  75  111.  315 ;  Breckenridge  v. 
three  and  one-half  years  after  the  Ormsby,  1  J.  J.  Marsh.  (Ky.)  248; 
ceasing  of  disability  was  held  fatal  Austin  v.  Charleston  Seminary,  8 
to  a  disaffirmance.  What  is  a  rea-  Met.  (Mass.)  203;  but  compare  Jack- 
sonable  time,  however,  will,  in  most  sou  v.  Burchin,  14  Johns.  (N.  Y.)  127; 
instances,  depend  upon  the  circum-  Beeler  v.  Bullitt,  3  A.  K.  Marsh, 
stances  of  the  particular  case.  (Ky.)  280. 
1  Robbins  v.  Eaton,  10  N.  H.  561 ; 


76  CONTRACT   OF    SALE. 

to  relax  it,  until  1111111137^  legislation,  reflecting  the  enlighten- 
ment of  the  age,  abolished  it  altogether.  The  prevailing  doc- 
trine now  IS  that  coverture  forms  no  bar  —  a  married  woman 
having  the  same  freedom  of  action  and  contractual  liability  as 
though  she  were  sole. 

The  original  rule,  in  all  its  harshness,  prevailed  for  many 
years  in  all  of  the^older  states,  although  from  an  early  day  a 
married  woman  was  permitted  to  convey  her  lands  by  joining 
with  her  husband  in  a  deed  therefor,  properly  acknowledged 
and  certified;  but  her  acknowledgment,  which  performed  the 
same  ofiice  as  the  ancient  fine  and  recovery,  was  the  operative 
act  to  pass  the  title,  and  not  the  delivery  of  the  deed.  Under 
these  laws  her  contracts,  whether  made  separately  or  jointly 
with  her  husband,  could  not  be  enforced  against  her,  even 
though  she  had  received  the  full  value  of  the  land.  Later  she 
was  permitted,  b}"-  joining  Avith  her  husband,  to  conclude  her- 
self the  same  as  a  feme  sole',  and  under  these  laws  the  acknowl- 
edgment ceased  to  be  the  effective  means  to  work  the  transfer 
of  title,  the  certificate  standing  upon  the  same  footing  with 
that  required  in  respect  to  an  unmarried  woman,  while  the 
contracts  so  made  were  capable  of  specific  enforcement  in 
equit}^  In  still  more  recent  years  have  come  other  changes 
which  secure  to  married  women  the  same  rights  in  regard  to 
their  separate  estates  as  is  possessed  by  their  husbands  in  re- 
spect to  their  own  property,  and  for  every  practical  purpose  a 
married  woman  can  no  longer  be  said  to  rest  under  a  disabil- 
ity from  that  fact  alone. 

Such,  at  least,  is  the  present  condition  of  the  law  in  a  ma- 
jority of  the  states.  But  where  the  statute  still  prescribes 
requisites,  the  rule  is  that  the  deed  of  a  married  woiT)an,  to  be 
operative  as  a  valid  legal  contract  or  conveyance,  must  be  exe- 
cuted in  strict  conformity  with  all  such  requirements;  and,  un- 
less it  does  so  conform,  equity  cannot  supply  the  defects  or 
omissions. 

At  common  law  a  wife  could  convey  her  real  estate  only 
by  uniting  v/ith  her  husband  in  levying  a  fine,  which,  being 
a  solemn  proceeding  of  record,  the  judges  were  supposed  to 
watch  over  and  protect  her  rights,  and  ascertain  by  a  private 
examination  that  her  participation  was  voluntary.     The  stat- 


PARTIES.  '  77 

ute  in  the  United  States  provided  a  mode  for  the  alienation  of 
the  propert3''of  a  married  woman  consisting  of  certain  matters 
of  execution  which  were  regarded  as  a  substitute  for  the  com- 
mon-law line,  but  in  order  that  her  deed  sliould  be  operative 
to  any  extent  the  courts  have  uniformly  held  that  it  must  con- 
form fully  with  the  statute.* 

^  See  Silliuian  v.  Cummins,  13  Ohio,    501 ;  Dewey  v.  Campau,  4  Mich.  565 ; 
116;  O'Ferrall  v.  Simplot,  4  Iowa,    Pratt  v.  Battels,  28  Vt.  685. 
381 ;  Grove  v.  Zumbro,  14  Gratt.  (Va.) 


78  CONTKACT   OF   SALE. 


Art.  III.     Persons  Incompetent. 

§  1.     Lunatics. 

2.  Imbeciles. 

3.  Drunkards. 

§  1.  Lunatics.  Persons  of  unsound  mind,  when  such  un- 
soundness amounts  to  an  incapacity  to  understand  and  act  in 
the  ordinary  affairs  of  life,  have  always  been  held  incapable 
of  making  a  valid  contract;  for  it  is  essential  that  there  should 
be  the  concurring  assent  of  two  minds,  and  they  who  have  no 
mind  are  unable  to  give  true  consent.^  Yet,  while  this  is  the 
recognized  doctrine,  it  by  no  means  furnishes  a  conclusive 
rule  for  the  decision  of  all  questions  growing  out  of  the  con- 
tracts of  demented  persons;  nor  indeed  can  any  rule  that  can 
be  deemed  authoritative  be  formulated  from  the  reported 
cases.  It  would  seem,  however,  that  Avhile  the  plea  of  lunacy 
is  usually  an  effectual  bar  to  the  enforcement  of  an  execu- 
tory contract,"  3'et  where  a  purchase  has  been  made  from  an 
insane  person,  and  a  deed  of  conveyance  obtained  in  perfect 
good  faith,  before  an  inquisition  and  finding  of  lunacy  and 
with  no  knowledge  of  such  lunacj''  on  the  part  of  the  pur- 
chaser, and  if  the  transaction  has  been  in  all  other  respects 
fair  and  reasonable,  with  no  advantage  taken  by  the  pur- 
chaser, and  if  the  conveyance  was  for  a  sufficient  considera- 
tion, which  was  received  by  the  lunatic,  if  the  parties  cannot 
be  put  in  statu  quo  it  will  not  be  set  aside.''  This  results,  it 
is  said,  not  because  the  contract  was  valid  and  binding,  but 

1  Powell  V.  Powell,  18  Kan.  371;  ^Behrens  v.  McKenzie,  23  Iowa, 
Van  Deusen  v.  Sweet,  51  N.  Y.  378;  333;  (Jribben  v.  Maxwell,  7  Pac.  Rep. 
Dexter  v.  Hall,  82  U.  S.  9 ;  and  see  584 ;  Allen  v.  Berryhill,  27  Iowa,  534 ; 
Grant  v.  Thompson,  4  Conn.  203;  Bank  v.  Moore,  78  Pa.  St.  407, 
Lang  V.  Whidden,  2  N.  H.  435.  where  a  lunatic  was  held  liable  upon 

2  It  was  held  in  Allen  v.  Berryhill,  a  note  discounted  by  him  at  the  bank ; 
27  Iowa,  534,  that  where  a  contract  Scanlan  v.  Cobb,  85  111.  296 ;  Freed 
made  by  an  insane  person  has  been  v.  Brown,  55  Ind.  310;  Young  v. 
adopted,  and  is  sought  to  be  enforced  Stevens,  48  N.  H.  133;  Eaton  v. 
by  the  representatives  of  such  per-  Eaton,  37  N.  J.  L.  108 ;  and  see  2 
son,  it  is  no  defense  to  the  sane  party  Kent,  Com.  (11th  ed.)  583.  The  Eng- 
to  show  that  the  other  party  was  lish  cases  also  sustain  this  view. 
non  compos  mentis  at  the  time  the 

contract  was  made. 


I'AKTIKS.  79 

rather  for  the  reason  that  an  innocent  party,  without  fault  or 
negligence,  would  he  prejudiced  by  setting  it  aside.  Both 
parties  are  faultless,  and  therefore  stand  equal  before  the  law; 
and  in  the  forum  of  conscience  the  law  will  not  lend  its  active 
interposition  to  effectuate  a  wrong  or  prejudice  to  eitlier,  but 
will  suffer  the  misfortune  to  remain  where  nature  has  cast  it.* 

It  must,  of  course,  be  understood  that  the  circumstances  at- 
tending the  case  have  much  to  do  with  the  ap[)lication  of  the 
rule  last  stated  whenever  it  is  invoked  as  a  rule.  Insanity  is  a 
mysterious  disease,  sometimes  affecting  the  mind  only  in  its 
relation  to  or  connection  with  a  particular  subject,  leaving  it 
sound  and  rational  as  to  all  others;  and  many  insane  persons 
drive  as  thrifty  a  bargain  as  the  shrewdest  business  man,  with- 
out betraying  in  manner  or  conversation  the  faintest  trace  of 
mental  derangement.  It  would  be  unjust,  therefore,  that  such 
persons  should  be  allowed  to  retain  the  property  of  innocent 
parties,  or  to  retain  their  own  propert}^  and  its  price  ;^  and  in 
this  light  the  rule,  as  stated,  is  applied. 

The  deed  of  a  lunatic  is  not  void,  but,  like  that  of  other  per- 
sons incompetent  or  disabled,  voidable  only,  and  is  effectual 
to  pass  title  with  all  its  incidents  if  unassailed.' 

After  a  person  has  by  inquest  been  found  to  be  of  unsound 
mind,  he  should,  so  long  as  the  unsoundness  continues  to  exist, 
be  regarded  for  most  if  not  all  purposes  as  civilly  dead.* 

§  2.  Imbeciles.  Mere  weakness  of  mind,  when  unaccom- 
panied by  any  circumstances  showing  imposition  or  undue  ad- 
vantage,'^ forms  no  objection  to  the  validity  of  a  contract,  for 
the  law  does  not  graduate  intellectual  differences  on  a  nicely 
adjusted  scale;  nor  does  it  seem  that  partial  insanity  or  mono- 
mania,'* unless  it  exists  with  reference  to  the  contract,  will 
create  incapacity  unless  coupled  with  other  circumstances. 
That  the  mental  powers  have  been  somewhat  impaired  b}'  age 

•  Cole,  J.,  in  Allen  v,  Berryhill,  27  Hobson,  53  Me.  451 ;  Elston  v.  Jasper, 

Iowa,  534.  45  Tex.  409 ;  Mohr  v.  Tulip,  40  Wis.  66. 

^Bank   v.    Moore,  78  Pa.   St.  407;  ^McNees    v.    Thompson,    5    Bush 

Young  V.  Stevens,  48  N.  H.  133.  (Ky.),  680. 

3  Wait  V.  Maxwell,  5  Pick.  (Mass.)  ^Mann    v.    Betterly,   21  Vt.    826; 

217;   Badger  v.    Phinney,    15   Mass.  Young  v.    Stevens,   48    N.   H.    133; 

859;  Ingrahani  v.   Baldwin,  9  N.  Y.  Cain  v.  Warford,  33  Md,  23. 

45;  Grouse  v.  Holman,  19  Ind.  30;  « Burgess  v.  Pollock,  53  Iowa,  273. 
Chew  v.  Bank,  14  Md.  299;  Hovey  v. 


80  CONTKACT   OF   SALE. 

is  not  sufficieut  to  invalidate  a  deed,'  unless  it  can  be  shown 
that  the  purchaser  took  unfair  advantage  of  the  vendor's  men- 
tal incapacity;  and  if  he  be  still  capable  of  transacting  his  or- 
dinary business  —  if  be  understands  the  nature  of  the  business 
in  which  he  is  engaged,  and  the  effect  of  what  he  is  doing,  and 
can  exercise  his  will  with  reference  thereto — his  acts  will  be 
valid  and  binding.- 

Transactions  with  persons  of  feeble  mind  are  always  subject 
to  close  scrutiny,  however,  and,  unlike  those  between  parties 
of  unimpaired  mental  faculties,  will  be  set  aside  on  slight 
grounds  after  the  disability  has  been  shown  to  exist.  Where 
one  of  the  parties  to  a  contract  at  the  time  of  its  execution 
was  laboring  under  mental  weakness,  a  court  of  equity  will 
investigate  the  consideration  and  determine  its  sufficiency,  as 
well  as  pass  upon  the  party's  mental  state  and  condition;  and 
if  inadequacy  of  consideration  and  mental  imbecility  concur, 
although  the  weakness  of  mind  does  not  amount  to  idiocy  or 
legal  incapacity,  the  contract  will  be  annulled  at  the  instance 
of  the  proper  party.  In  such  cases,  it  would  seem,  it  is  not 
necessary  to  show  that  the  party  was  actually  misled  by  fraud 
or  undue  influence.^ 

Persons  born  deaf  and  dumb  are,  by  the  common  law,  prima 
facie  non  compos  mentis^  and  without  sufficient  understanding 
to  know  and  comprehend  their  rights  and  liabilities.  The  im- 
proved methods  of  educating  such  persons  adopted  at  the 
present  day  develop  in  them  a  higher  degree  of  intelligence, 
however,  than  it  was  formerly  supposed  they  possessed,  and  to 
some  extent  has  modified  the  ancient  rule.  Yet  as  the  want 
of  hearing  and  speech  must  necessarily  prevent  a  full  develop- 
ment of  their  intellectual  powers,  and  place  them  at  a  great 
disadvantage  in  their  dealings  with  others,  the  law  throws 

1  Lindsey  v.  Lindsey,  50  111.  79 ;  is  from  age  or  weakness  of  disposi- 
Beverly  V.  Walden,  20  Gratt.  (Va.)  tion  likely  to  be  imposed  upon,  the 
147.  statement  of  a   consideration  when 

2  English  V.  Porter,  109  111.  285.  there  was  none,  or  improvidence  of 

3  "Wray  v.  AVray,  32  Ind.  126.  In  the  transaction,  are  circumstances 
transactions  connected  with  the  which  furnish  a  probable,  though  not 
transfer  of  property,  the  non-inter-  always  a  certain,  test  of  undue  in- 
vention of  a  disinterested  third  party  fluence  or  fraud.  Cadwallader  v. 
or  independent  professional  adviser.  West,  48  Mo.  483. 

especially  when  the  contracting  party 


I'AirriKS.  SI 

around  them  for  their  protection  the  presumption  of  inc:ii);ic- 
ity  to  manage  their  own  alfair.s  until  the  contrary  is  shown.' 

§  3.  Drunkiirds.  It  is  a  well-established  principle  of  the 
common  law  that  intoxication  does  not  of  itself  render  a  con- 
tract void  or  relieve  the  contracting  parties  from  its  conse- 
quences, notwithstanding  it  may  bo  such  as  to  lead  them  into 
imprudent  and  disadvantageous  engagements.'-  AVerc  it  other- 
wise, drunkenness,  it  is  said,  would  be  the  cloak  of  fraud. 
But,  on  the  otiier  hand,  where  it  is  such  as  not  to  leave  to  meti 
the  power  of  perceiving  and  assenting,  they  cannot  be  bound, 
because  the  very  essence  of  every  contract  is  the  assent  of  the 
contractor  to  what  he  may  be  j)resumed  to  understand;  and 
hence,  where  the  power  of  assent  is  wanting,  where  reason, 
memory  and  judgment  have  been  drowned,  leaving  such  an 
impairment  of  the  mental  faculties  as  amounts  to  positive  in- 
capacity to  act  or  comprehend,  the  transaction  may  be  avoided 
for  that  reason.-^ 

To  avoid  responsibility,  however,  on  the  ground  of  intoxi- 
cation, the  proof  of  mental  incapacity  must  be  clear  and  con- 
vincing;^ for  a  drunkard  is  not  incompetent,  like  an  idiot  or 
one  generally  insane,'^  and  the  proof  must  show  that  at  the 
time  of  the  act  in  question  his  understanding  was  clouiled  or 
his  reason  dethroned  by  actual  intoxication;''  while  some  au- 
thorities hold  that,  notwithstandmg  he  may  have  been  so  drunk 
at  the  time  as  to  be  incapable  of  judging  correctly  or  acting 
prudently,  he  will  still  be  iield  to  the  contract,  unless  it  can  be 
shown  that  the  intoxication  was  procured  with  the  consent  or 
by  the  contrivance  of  the  other  party,  or  that  fraud  or  duress 
was  employed.'  The  volume  of  autliority,.l;owever,  does  not 
seem  to  sanction  this  view;  and  it  may  now  be  considered  a 

1  Oliver    v.    Berry,    53    Me.    20G;    Dunn  v.  Amos.  14  Wis.  lOG;  Johns 
Brower  v.   Fisher,  4  Johns.  Ch.  (N.    v.  Fritchey,  39  Md.  258. 

Y.)  441.  ■•  Bates  v.  Ball,  73  111.  108. 

2  Bates  V.  Ball,  72  111.  108;  Joest  v.       5  Van  Wyck  v.  Brasher,  81  N.  Y. 
Williams,  42  In<l.  505 :  Broadwater  v.    260. 

Daine,  lOMo.  277;  Johns  V.  Fritclicy,  6 Gardner   v.   Gardner,    22    Wend, 

ay  Md.  258  ;  Caulkins  v.  Fry,  35  Conn.  (N.  Y.)  52G;  Peck  v.  Gary,  27  N.  Y.  0; 

170;  Peck  v.  Gary,  27  N.  Y.  9.  Jolms  v.  Fritchey,  39  Md.  258. 

3  French    v.    flench,  8   Ohio.  214;  "  Dates  v.  Ball,  72  111.  108;  Rodman 
Van  Wyck  v.  Brasher.  81  N.  Y.  260;  v.  Zilley,  1  N.  J.  E.].  320. 

Wilcox  V.   Jackson,    51   Iowa,   208; 
6 


82  CO^'TUACT   OF    SALE. 

settled  principle,  according  to  the  dictates  of  good  sense  and 
common  justice,  that  a  contract  made  by  a  person  so  destitute 
of  reason  as  not  to  know  the  consequences  of  his  contract, 
even  though  his  incompetency  be  produced  by  intoxication,  is 
voidable,  and  may  be  avoided  by  himself;  and  this,  too,  al- 
though the  intoxication  was  voluntary,  and  not  procured  by 
the  circumvention  of  the  other  party.^ 

Ordinarily,  to  defend  against  a  contract  on  the  ground  of 
intoxication,  it  must  have  been  rescinded  by  restoring,  or  by 
an  offer  to  restore,  whatever  was  received  therefor  as  a  con- 
sideration;^ and  if  the  drunkard,  during  his  sober  intervals 
and  with  knowledge  of  what  he  has  done,  keeps  the  consider- 
ation received,^  or  by  other  unequivocal  act  or  declaration  in- 
dicates an  intention  to  ratify  what  he  has  done,  the  contract 
will  be  regarded  as  affirmed/ 

A  protection  against  waste  and  improvidence  has  been  cre- 
ated in  most  of  the  states  by  a  special  statute  providing  for  a 
conservator  or  committee  to  manage  and  control  the  drunk- 
ard's estate;  and  when  a  man  has  been  found,  by  inquisition 
duly  taken  in  pursuance  of  the  statute,  to  be  incapable  of  con- 
ducting his  own  affairs  in  consequence  of  habitual  drunkenness, 
his  propert}^  —  real  as  well  as  personal  —  is  taken  out  of  his 
liands  and  put  into  the  custody  and  control  of  such  committee. 
The  trust  thus  created  continues  without  interruption  until  the 
death  of  the  drunkard  or  the  superseding  of  the  commission, 
and  all  business  relating  to  the  drunkard's  estate  must  be  trans- 
acted with  the  conservator  or  committee  until  the  inquisition 
has  been  set  aside.'^  The  fact  that  the  drunkard  has  sober  in- 
tervals in  no  Avay  alters  the  case,  and  during  such  intervals  he 
has  no  more  authority  to  deal  with  or  dispose  of  his  property 
than  while  he  is  in  a  state  of  intoxication;  nor  will  the  further 

1  Broadwater  v.  Dnrne,  10  Mo.  277;  ing  sufficiently  sober  to  compreliend 

Miller  v.  l^'inle}'.  26  Mich.  254;  Mans-  the  nature  of  the  transaction,  mani- 

field  V.  Watson,  2  Iowa,  111.  festing  an  intention  to  be  bound  by 

2Joest  V.   Williams,  42  Ind.    oG.j;  the  contract  and  inconsistent  with 

Cummings  v.  Henry,  10  Ind.  109.  its  disaffirmance,  will  amount  to  a 

i'Joestv.  Williams,  42  Ind.  565.  ratiiication.     Mansfield  v.  Watson,  2 

^The  rule  with  respect  to  intoxi-  Iowa,  111. 
caced  persons  is  practically  the  same       ^  Wadsworth  v.  Sharpsteen,  8  N.  Y. 

as  in  cases  of  infancy;  and  any  dis-  388;  Redden  v.  Baker,  80  Ind.  195. 
tinct,  unequivocal  act,  after  becom- 


PARTIES.  83 

fact  that  the  other  contracting^;  party  acted  in  good  faith  and 
•with  no  actual  notice  of  the  inquisition  confer  upon  liim  any 
additional  rights  or  furnish  ground  for  equitable  relief.  From 
the  very  nature  and  object  of  the  proceeding  the  inquisition 
must  be  regarded  as  conclusive  evidence  of  the  incapacity  of 
the  drunkard  to  dispose  of  his  property  or  contract  obligations 
in  regard  thereto;  and  of  this  proceeding  those  dealing  with 
him  must  take  notice.  This  rule  may  sometimes  be  a  hard  one, 
but  it  can  never  be  said  to  bo  unjust;  nor  does  it  violate  the 
general  rule  that  a  decree  or  other  judicial  proceeding  binds 
those  only  who  are  parties  to  it,  as  these  proceedings  are  mat- 
ters of  public  interest  and  concern,  to  which  no  one  can  strictly 
be  said  to  be  a  stranger.^ 

1  Wadsworth  v.  Sharpsteen,  8  N.  Y.  388. 


81 


CONTKACT    OF   SALE. 


Akt.  IV.     Fiduciaries. 


§  1.  General  principles. 

2.  Trustees. 

8.  Mortgagees. ' 

4.  Executors  and  administrators. 

5.  Continued  —  Executors. 

6.  Continued  —  Administrators. 


§  7.     Guardians. 

8.  Trustees    as  purchasers  —  The 

rule  stated. 

9.  Continued  —  Exceptions  to  and 

qualifications  of  the  rule. 


§  1,  General  principles.  A  very  large  proportion  of  the 
sales  of  real  estate  in  the  United  States  are  made  through  the 
media  of  fiduciaries  and  trustees.  They  include  not  only 
trustees  proper,  but  all  who  act  under  a  power,  as  mortgagees, 
executors,  guardians,  etc.;  and  the  same  general  principles  are 
equally  applicable  to  all  of  the  different  classes  and  relations. 
Courts  of  equit}'^  will  scrupulously  examine  the  conduct  of 
persons  acting  in  a  fiduciary  or  trust  capacity,  and  protect  the 
trust  property  from  waste,  whether  it  arises  from  the  actual 
or  constructive  fraud  of  the  trustee  acting  with  the  party 
taking  the  undue  advantage,  or  from  the  fraud  of  the  latter 
alone.^  The  presumption  is,  however,  that  parties  charged 
with  a  trust  perform  their  duty  until  the  contrary  appears ; 
and,  when  an  act  is  susceptible  of  two  opposite  constructions, 
one  consistent  with  innocence  and  fidelity  to  duty  and  the 
other  the  reverse,  the  law  presumes  in  favor  of  innocence  and 
fidelity.^ 

§  2.  Trustees.  By  the  rules  of  the  common  law  a  trustee 
to  whom  land  has  been  conveyed  is  regarded  as  possessing  the 
full  legal  title,  the  legal  estate  in  his  hands  being  attended  by 
the  same  incidents  and  having  the  same  properties  that  it 
would  have  were  he  the  usufructuary  owner.  In  equity  he 
was  formerly  treated  as  the  legal  owner,  and  for  many  pur- 
poses still  is,  although  obliged  to  use  the  land  for  the  declared 
objects  and  avowed  purposes  of  the  trust.  At  the  present 
time,  and  in  the  United  States,  the  generall3'--accepted  doc- 
trine is  that  a  trustee  takes  an  estate  commensurate  in  extent 
and  duration  with  the  object  and  extent  of  the  trust.  Its  crea- 
tion gives  him  not  only  a  power  but  an  estate ;  and  if  the 


1  Moore  v.  School  Trustees,  19  111.  83.       2  Munn  v.  Barges,  70  111.  604. 


PARTIES.  85 

trusts  require  an  estate  in  fee,  such  will  devolve  on  the  trustee 
irrespective  of  any  words  of  purchase  or  limitation.' 

A  conveyance  b}''  liic  trustee  has,  at  common  law,  the  cfTcct 
of  a  complete  transfer,  which  is  as  effectual  ordinarily  as  though 
he  also  possessed  the  beneficial  estate;^  and  even  though  the 
conveyance  may  have  been  in  violation  of  the  trust,  his  vendee 
will  nevertheless  hold  the  legal  title,  the  question  as  to  his  right 
to  convey  being  of  equitable  cognizance  only,  and  hence  not  to 
be  inquired  into  by  a  court  of  law/  The  revised  statutes  of 
some  of  the  states  provide  that,  where  the  trust  shall  be  ex- 
pressed in  the  instrument  creating  the  estate,  every  sale,  con- 
veyance, or  other  act  of  the  trustee  in  contravention  of  the 
trust  shall  be  absolutely  void,  the  object  being  to  protect  bene- 
ficiaries from  the  unauthorized  acts  of  their  trustees  by  charg- 
ing persons  dealing  with  the  latter  with  knowledge  of  the 
trust.  Under  these  statutes  the  courts  have  held  that  any  sale 
or  conveyance  in  contravention  of  the  trust  is  ineffectual  to 
pass  the  title,  and  that  the  legal  estate,  notwithstanding  the  con- 
veyance, remains  in  the  trustee.*  Independent  of  any  statute, 
however,  there  is  no  doubt  but  that  persons  dealing  with  a 
trustee  on  the  faith  of  the  trust  estate  are  bound  at  their  peril 
to  take  notice  of  the  scope  of  his  powers;'  and  where  a  trust 
deed,  or  other  instrument  creating  the  trust,  minutely  and  par- 
ticularly describes  the  circumstances  under  which  and  the  man- 
ner in  which  the  trustee  shall  have  authority  to  act,  he  will 
have  no  power  or  authority  to  dispose  of  the  trust  property 
under  any  other  circumstances  or  in  any  other  manner.^  If 
the  power  to  convey  can  be  exercised  only  on  the  happening 

1  West  V.  Fitz,  109  111.  425;  Doe  v.  *  Anderson  v.  "Wood,  41  N.  Y.  249; 

Ladd,  77  Ala.  223 ;   Leonard  v.  Dia-  Russell    v.    Russell,    36    N.   Y.  581 ; 

mond,  31    Md.   53G;    Stockbridge  v.  Douglas  v.  Cruger,  80  N.  Y.  15.    The 

Stockbiidge,  99  Mass.  244.  statute  does  not  seem  to  liave  been 

-Bank  V.  Benning,  4Cranch(U.  S.),  very  generally  enacted,  and  is  con- 

81 ;  Thatcher  V.  St.  Andrew's  Church,  fined   to  New  York,  California  and 

37  Mich.  264;  Dawson  v.  Hayden,  67  possibly  a  few  other  states. 

111.  52:  R.  R.  Co.  v.  Green,  68 Mo.  169;  a  Owen  v.  Reed,  27  Ark.  122;  Ver- 

Packard  v,  Marshall,  138  Mass.   301.  non  v.  Board  of  Police,  47  Miss.  181. 

scanoy  v.  Troutinan,  7    Ired.    L.  6  iluntt  v.  Townshend,  31  Md.  336; 

(N.  C.)  155;  Dawson  v.  Hayden,  67  Mills  v.  Taylor,  30  Te-K.  7. 
III.  52. 


86  CONTEACT   OF   SALE. 

of  an  event  which  is  a  condition  precedent,  the  purchaser  must 
ascertain  at  his  peril  whether  the  condition  has  been  fulfilled.^ 

Again,  if  one  who  holds  a  legal  title  in  trust  for,  or  who  is 
equitably  bound  to  convey  to,  another,  transfers  the  legal  title 
to  a  third  person  with  notice  of  the  trust,  such  purchaser  will 
himself  become  a  trustee,  and  as  much  bound  to  convey  to  the 
real  owner  as  if  he  had  acquired  the  title  with  an  express  agree- 
ment to  perform  the  trust.^  lie  can  only  hold  it  subject  to  the 
liability  of  his  vendor  to  respond  to  the  existing  trust,  and  can- 
not be  heard  to  defeat  it,  notwithstanding  he  may  have  pur- 
chased for  a  full  consideration.^ 

Lands  held  in  trust  by  several  persons  can  only  be  conveyed 
by  the  joint  act  of  all ;  *  and,  if  any  one  or  more  of  them  assume 
to  act  without  tiie  concurrence  of  the  other,  the  conveyance 
will  not  pass  the  legal  title  to  the  property.* 

§3.  Mortgagees.  Sales  and  conveyances  by  mortgagees  act- 
ing under  and  in  pursuance  of  a  power  differ  in  no  important  par- 
ticular from  conveyances  by  trustees  acting  in  a  like  capacity, 
the  mortgagee  being,  for  the  purposes  of  the  conveyance,  an  ex- 
ecutor of  an  express  trust.  He  is  held  to  the  same  strict  rules 
that-  regulate  the  conduct  of  other  trustees,  and  cannot  ex- 
ceed the  express  powers  under  which  he  acts.  A  mortgagee 
may  sell  the  equity  of  redemption  of  the  mortgagor  and  such 
interest  as  is  conveyed  to  him  by  the  mortgage  under  which 
he  sells,  but  he  cannot  sell  the  equity  of  redemption  by  itself; 
nor  can  he  sell  an  undivided  portion  of  his  interest  in  the  land 
included  in  the  mortgage.  A  proper  execution  of  the  power 
of  sale  requires  him  to  sell  all  he  is  entitled  to  under  it,"  and 
for  the  same  reason  he  has  no  right  to  sell  a  greater  interest 

1  Griswold  V.  Perry,  7  Lans.  (N.  Y.)  3  Webster  v.   French,   11  111.  254; 

98.  Bethel  v.  Sharp,  25  111.  173. 

3  Jackson  v.   Matsdorf,    11  Johns.  '•Sinclair  v.  Jackson,  8  Cow.  ,'N.  Y.) 

(N.  Y.)  91;  Carpenter  v.  McBride,  3  543;  Goldep  v.  Dressier,  105  111.  419; 

Fla.  292;  Ryan  v.  Doyle,  31  Iowa,  53;  Heard  v.  March,  13  Cush.  (Mass.)  580; 

Kent  V.  Plumb,  57  Ga.  207 ;  Ham  v.  Ham  v.  Ham,  58  N.  H.  70. 

Ham,  58  N.  H.  70 ;  Sadler's  Appeal,  87  &  Larned  v.  Welton,  40  Cal.  349. 

Pa.  St.  154;  Gray  v.  Ulrich,  8  Kan.  epowle  v.  Merrill,    10  Allen,  850; 

113;  Isom  v.  Bank,  53  Miss.  903;  Gale  Torrey  v.  Cook,  116  Mass.  163. 
V.  Hardy,  20  Fla.  171 ;  Smith  v.  Wal- 
ter, 49  Mo.  250. 


PARTIES.  S7 

than  the  mortgage  gives  him  or  authorizes  him  to  sell.  A  vio- 
lation of  these  rules  will  render  the  sale  invalid.'  The  original 
purchaser  at  a  sale  by  a  mortgagee,  under  a  i)o\ver  of  sale  con- 
tiiined  in  the  mortgage,  is  chargeable  with  notice  of  defects 
and  irregularities  attending  the  sale,  and  cannot  evade  their 
effect;  but  it  would  seem  that,  as  to  remote  purchasers,  the  sale 
is  only  voidable  on  proof  of  actual  knowledge  of  such  defects.- 
It  has  been  held,  however,  that  a  properly  e.xccuted  deed  re- 
citing strict  conformity,  the  purchaser  having  no  actual  knowl- 
edge or  notice  of  any  irregularitv,  and  taking  such  deed  upon 
tlie  strength  of  the  assurances  therein  contained,  will  protect 
the  title  of  such  purchaser.' 

§  4.  Executors  anil  administrators.  E.xecutors  and  ad- 
ministi'ators  stand  m  the  positK^n  of  trustees  of  those  inter- 
estetl  in  the  estates  upon  which  they  administer.  An  executor 
may  sell  and  convey  lands  held  in  special  trust  without  the 
intervention  of  a  court,  but  not  such  lands  as  are  sold  in  due 
course  of  administration  to  pay  decedent's  debts,  while  an  ad- 
ministrator can  do  no  act  affecting  lands  without  special 
orders  of  a  court.  In  case  of  sales  by  either  olficer,  no  title 
passes  until  the  execution  and  delivery  of  a  deed;'  and,  with- 
out such  title  as  the  deed  conveys,  the  purchaser  cannot 
maintain  or  defend  ejectment  against  or  by  the  hcir.'^ 

§  5.  Continued  —  Executors.  A  testamentary  executor 
stands  in  the  place  of  and  represents  his  testator.  He  derives 
his  power  primarily  from  the  will,  and  in  this  resi)ect  differs 
somewhat  from  an  administrator,  whose  sole  power  is  derived 
from  the  law  and  the  directions  of  the  court.®    AVhen  acting 

1  Donohue  v.  Chase,  11  Reporter,  t lie  power,  although  the  deed  may  bo 
225.  defectively  executed  so  as  not  to  pass 

2  Hamilton  v.  Lubiikee,  51  111.  415;  the  legal  title.  Gibbons  v.  Iloag,  115 
but  see  Hosmer  v.  Campbell,  98  III.  111.  15. 

572.  ••  Although  it  seems  a  properly  con- 

3  Hosmer  v.  Campbell,  98  111.  572.  dueled  sale,  after  confirmation,  will 
Where  a  deed  for  land  sold  under  a  vest  an  ecjuitable  title  in  the  pur- 
power  in  a  mortgage,  reciting  cor-  chaser. 

rectly  all  the  facts  showing  a  right  to  ^  Dov  v.  Hardy,  52  Ala.  291 ;  Grid- 
make  the  sale,  is  recorded  in  apt  tiuie,  ley  v.  I'iiillips,  5  Kan.  ^49. 
the  record  thereof  will  adect  all  per-  ''  Walker  v.  Craig,  18  111.  110;  Van 
sons  thereafter  claiming  under  the  Wickle   v.  Calvin,  23  La.  Ann.  205; 
mortgagor  with  constructive  notice  Gilkey  v.  Hamilton,  22  Mich.  283. 
that  there  had  been  a  valid  sale  under 


88  CONTRACT   OF   SALE. 

undor  a  naked  testamentary  appointment,  his  powers  arc  co- 
extensive with  those  of  the  administrator,  and  ho  is  bound  by 
the  same  rules  and  subject  to  the  same  restrictions.  Lut  the 
executor  may  also  be  a  trustee,'  and,  when  acting  as  such,  the 
scope  of  his  powers  is  measured  and  limited  by  the  will  which 
appoints  him.  Under  his  testamentary  authority  he  may  sell 
land  and  otherwise  execute  the  trusts  and  exercise  the  powers 
enumerated  and  conferred  in  the  will,  subject  to  the  general 
regulations  of  the  statute,  and  free  from  the  control  or  inter- 
vention of  a  court;-  but  whei-e  authority  is  not  expressly  given, 
or  where,  during  the  administration,  he  performs  the  ordinary 
offices  of  an  executor,  as  where  land  is  sold  to  pay  the  debts  of 
decedent,  no  express  ]:;ower  being  given,  he  must  first  obtain 
authority  or  iicense  from  the  probate  court;  and  his  sale  must 
be  reported  to  and  confirmed  by  such  court  before  a  deed  can 
lawfuU}^  issue  to  the  purchaser. 

§  6.  Contiuuetl — Administrators.  An  administrator  is  re- 
garded as  an  executive  officer  of  tlie  court,  "while  he  also 
occupies  the  relation  of  trustee  to  the  estate,  its  creditors  and 
distributees.'  Although  he  may  not  possess  as  much  power  as 
an  executor,  the  latter  deriving  his  ))ower  from  the  testator 
and  the  law,  and  the  administrator  from  the  law  only,^  he  yet 
])ossesses  all  necessary  power  to  sell  property,  negotiate  securi- 
ties, and  to  settle  and  pay  debts,^  but  under  the  order  and 
direction  of  the  court.  He  takes  neither  an  estate,  title  nor 
interest  in  the  lands  of  his  intestate,"  but  a  mere  naked  power 
to  sell  for  specific  purposes.''  He  takes  the  land  as  he  finds 
it,*  and,  having  no  interest  therein,  can  maintain  no  action  to 


1  Pitts  V.  Singleton,  44  Ala.  363.  5  Walker  v.  Craig.  18  III.  IIG.    Real 

-  Buckingham  v.  Wesson,  54  Miss,  estate  cannot  be  sold  by  an  adminis- 

r)2G;  Wliitman  v.  Fisher,  74  111.  147;  trator  unless  the  personal  estate  is  in- 

Cronise  v.  Hardt,  47  Md.  433;  Jelks  sulRciont  to  pa}'  the  liabilities;  and, 

V.  Barrett,  52  Miss.  315;  Hughes  v.  ordinarily,  only  so  much  should  be 

AVashington,    73    111.    84.     But    tlie  sold  as  is  necessary  for  that  purpose, 

power    must    be    explicit;    general  Newcomer  v.   Wallace,  30  Ind.  216; 

Avords  do  not  confer  power  to  sell  Foley  v.  McDonald,  46  Miss.  238. 

lands.     Skinner  v.  Wood,  76  N.  C.  « Ryan    v.    Duncan,    88   111.    144 ; 

109.  Stuart  v.  Allen,  16  Cal.  473. 

3  Wingate  V.  Pool,  25  111.  118;  State  'Smitli  v.    McConnell,  17  111.  135; 

V.  Meagher,  44  Mo.  356.  Floyd  v.  Herring.  64  N.  C.  409. 

HJUkey  v.  Hamilton,  22  Mich.  283.  «Gridley  v.  Watson,  53  111.  186. 


I'AUTIES.  89 

perfect  the  title  or  relieve  it  of  any  burden,'  and  must  sell  it 
as  lie  finds  it.'-  Tlie  |)(>\ver  to  sell  is  a  persf^nal  trust,  which 
cannot  be  dek\<;ate<l ;  ■'  and  the  sale,  bcin^^  a  fiduciary  act  based 
ujion  statute,  must  strictly  coiM[)Jy  with  all  the  provisions  of 
law/ 

The  doctrine  of  caveat  emptor  applies  to  all  sales  by  an  ad- 
ministrator;* and  the  purchaser,  who  is  presumed  to  have  made 
all  necessary  incjuiries,  takes  the  title  at  his  peril,"  and  stdjject 
to  all  liens  except  those  for  the  payment  of  which  the  land  is 
sold.'  The  purchaser  has  no  rif;ht  to  the  land  until  the  sale 
lias  been  confirmed;^  but  where  the  sale  has  been  made  under 
a  proper  order  of  the  court,  and  reported  to  and  confirmed  by 
it,  it  conveys  title  even  though  the  proceedings  be  irregulai-.'' 

It  may  happen  that  an  executor  or  administrator,  without 
authorit}',  invests  the  funds  of  the  decedent's  estate  in  land; 
or  he  may  take  land  in  ])ayment  of  a  debt  due  to  the  estate 
which  he  represents,  or  may  purchase  it  for  the  protection  of 
the  estate  at  an  execution  sale  under  a  judgment  belonging  to 
the  estate.  Under  such  circumstances  the  executor  or  admin- 
istrator in  one  sense  holds  the  land  in  trust  for  the  iiersons 
beneficially  interested  in  the  estate,  and  can  be  com|telletl  to 
account  for  it.  Such  land,  however,  would  not  come  under 
the  same  rules  as  if  it  had  been  the  pi'operty  of  the  decedent 
at  the  time  of  his  death ;  and  the  effect  of  a  conveyance  to  the 
executor  or  administrator  under  circumstances  similar  to  those 
mentioned  would  be  to  vest  in  such  person  the  entire  legal 
title  with  all  its  incidents,  including  a  full  j)owcr  of  disposition, 
lie  of  course  remaining  liable  to  account  for  its  ])roceeds  to 
those  interested  in  the  estate.  So,  too,  land  bought  in  by 
executors  or  administrators  on  a  foreclosure  of  a  mortgage 
belonging  to  the  estate  is  to  be  treated  as  jiersonal  j)ropcrty 
and  to  be  accounted  for  as  such;  and  whether  the  deed  is 

1  Le  Moyno  v.  Quimhv.  70  111.  399;  «  Bishop  v.  O'Connor,  G9  III.  4ol. 

Ityan  v.  Dnncnn,  ^8  111.  1-16.  '^  Henderson  v.  Wliitinger,  oG  Iiul. 

■--Martin  v.  Beasley,  49  Ind.  280.  131. 

3 Chambers  v.  Jones,  72   III.    275;  8 Mason   v.   Osgood,  (54  N.  C.  467; 

Ciridley  v.  Philips,  5  Kan.  349.  Rawlin-s  v.  Bailey,  15  III.  178. 

<FcU  V.  Youn-,  63  111.  100:  Lock-  "Thorn    v.    Ingram,   25    Ark.   52; 

wood   V.   Sturdevant,   G   Conn.    380;  Myer  v.  McDougal,  47  III.  278.    Com- 

l.^orwin  v.  Jlerritl.  3  Barb.  341.  pare  Cliaso  v.  Ross,  30  Wis.  267. 

5  McConnell  v.  Smith,  39  111.  279. 


90  cont;iact  of  sale. 

taken  in  the  names  of  siicli  persons  in  their  olTicial  capacity  or 
individually  is  innnatcrial  so  far  as  respects  heirs  and  devisees; 
the  entire  legal  title  is  held  by  such  personal  representatives, 
while  the  land  thus  purchased  by  them  is  regarded  as  a  sub- 
stitute  for  the  mortgage  foreclosed,  and  takes  its  place  for  all 
purposes  as  between  the  executor  or  administrator  and  the 
])artics  interested  in  the  estate.  The  land  itself  may  be  sold 
by  the  executor  or  administrator  in  the  exercise  of  their  own 
discretion;  while  the  beneliciaries  under  the  estate,  having  no 
direct  interest  in  the  property,  cannot  dispute  or  question  the 
title  of  a  purchaser.^ 

§  7.  (juardiaiH.  The  law  permits  conveyances  by  guard- 
ians, conservators,  committees,  etc.,  of  the  real  estate  of  their 
wards  whenever  the  sale  of  such  property  may  be  necessary 
or  expedient  for  the  pa3''raent  of  debts,  the  support  and  educa- 
tion of  the  ward,  an  investment  of  the  proceeds,  or  other  sim- 
ilar conditions.  Such  property  can  only  be  sold,  however,  under 
an  order  of  a  court  of  competent  jurisdiction,  and  a  confirma- 
tion after  sale  is  necessary  to  give  it  validit}^-  A  conveyance 
by  the  guardian  in  any  other  manner  is  unauthorized;  and 
where  one  purchases  the  real  estate  of  minors  from  a  guardian, 
directed  by  order  of  court  to  sell  it,  notwithstanding  he  takes 
a  deed  from  such  guardian,  if  the  sale  is  never  reported  or  con- 
firmed by  the  court,  he  cannot  maintain  his  title  against  a  sub- 
sequent conveyance  made  by  the  minors  after  coming  of  age.' 

§8.  Trustees  as  purchasers  —  The  rule  stated.  As  a 
vendee,  a  trustee  is  under  stringent  restrictions,  so  far  as  his 
dealings  with  the  trust  property  is  concerned;  and  the  rule  is 

1  Lockman  v.  Reilly,  95  N.  Y.  64 ;  statute  is  peremptory,  and  its  pro- 
Long  V.  O'Fallon,  19  How.  (U.  S.)  visions  cannot  be  disregarded  or 
IIG.  avoided;  and  if,  in  dealing  with  the 

2  People  V.  Circuit  Judge,  19  Mich,  rights  of  infants  or  others  under  dis- 
296;  White  v.  Clawson,  79  Midi.  188;  ability,  a  guardian  might  in  one  par- 
Cliapin  V.  Curtenius,  15  111.  427.  ticular  take  the  law  in  his  own  hands 

^Titinau  v.  Riker,  10  Atl.  Rep.  397.  and  assume  prerogatives  of  the  court, 

The    guardian  in  such  cases  is  the  then  he  might  in  every  other.     And 

agent  of  the  court,  and  can  take  no  the  same  remarks  are  applicable  to 

lawful  step  without  authority  from  the  purchaser.     If  he    accepts  title 

his  principal.     The  nature  and  extent  under  such  circumstances  he  does  it 

of  hii  authority  is  derived  from  the  at  his  peril,  and  with  every  means  ut 

statute,  whicli  is  the  foundation  for  hand  for  the  fullest  information, 
the  whole  proce3ding.     As  a  rule  the 


PARTIES.  91 

beyond  dispute  that  tlic  purchase  by  a  trustee,  directly  or  in- 
directly, of  any  part  of  the  trust  estate  which  he  is  empowered 
to  sell  as  a  trustee,  whether  at  public  auction  or  private  sale, 
is  voidable  at  the  election  of  the  beneliciaries  of  the  trust;  and 
this  rule  will  be  enforced  without  re<;ard  to  the  question  of 
good  faith  or  adequacy  of  price,  and  whether  the  trustee  has 
or  has  not  a  personal  interest  in  the  proj)erty.'  Xor  is  the 
application  of  this  rule  confined  to  any  particular  class  of  per- 
sons, such  as  guardians,  executors,  trustees, etc.;  but  it  is  a  rule 
of  universal  application  to  all  persons  coming  within  its  prin- 
ciple, which  is  that  no  j)erson  can  be  j)ermitted  to  ))urchase  an 
interest  where  he  has  a  duty  to  perform  that  is  inconsistent 
with  the  character  of  purchaser.-  The  reason  of  the  rule  is 
not  because  trustees  might  not,  in  many  instances,  make  fair 
and  honest  disposition  of  the  trust  estate  to  themselves,  but 
because  the  probability  is  so  great  that  they  would  frequently 
do  otherwise,  without  danger  of  detection,  that  the  law  con- 
siders it  better  polic}'  to  prohibit  such  purchases  entirely  than 
to  assume  them  to  be  valid  except  where  they  can  be  proved 
to  be  fraudulent.  The  rule  forbidding  this  conflict  between 
interest  and  duty  is  no  respecter  of  jjcrsons.  It  imputes  con- 
structive fraud  because  the  temptation  to  actual  fraud  and  the 
facility  of  concealing  it  are  so  great;  and  it  imputes  it  to  all 
alike,  who  come  within  its  scope,  however  much  or  however 
little  open  to  suspicion  of  actual  fraud.'' 

It  is  further  to  be  observed  that  the  principle  which  prohibits 
the  trustee  from  becoming  a  purchaser  extends  to  all  sales  of 
the  trust  property,  whether  made  by  the  trustee  himself  under 

'Nor  is  it  sulRcient  to  enable  a  2Biake  v.  R.  R.  Co.  oG  N.  Y.  -Ibio; 
trustee  to  make  such  a  purchase  that  Cook  v.  Berlin  Mill  Co.  43  Wis.  433; 
the  formal  leave  to  buy.  which  is  Grumley  v.  Webb,  44  Mo.  444;  Rob- 
usually  granted  to  the  parties  in  a  arts  v.  Roberts,  65  N.  C.  27;  Good- 
foreclosure  or  partition  sale,  has  win  v.  Goodwin,  48  Ind.  5S4;  Sheldon 
been  inserted  in  a  judgment  or  de-  v.  Rice,  30  Midi.  29G:  McGowan  v. 
(rree  authorizing  tlie  sale.  Such  a  McGowan,  48  Miss.  533;  Beauvelt  v. 
provioion  is  inserted  merely  to  obviate  Ackerman,  20  N.  J.  Eq.  141;Camp- 
the  technical  rule  that  parties  to  the  bell  v.  McLain,  51  Pa.  St.  200;  Demp- 
action  cannot  buy,  and  is  not  intended  ster  v.  West,  69  111.  613;  Higgins  v. 
to  determine  equities  between  the  Curtis,  82  111.  28. 
parties  to  the  action,  or  between  such  ^Cook  v.  Berlin  Mill  Co.  43  Wis, 
parties  and  others.  Fulton  v.  Whit-  433. 
uey,  66  N.  Y.  548. 


92  CONTRACT   OF   SALE. 

his  powers  as  trustee  or  under  an  adverse  proceeding.  As  a 
general  trustee  of  the  property  it  is  his  duty  to  make  it  bring  as 
mucli  as  possible  at  any  sale  that  may  take  place;  and,  there- 
fore, he  cannot  put  himself  in  a  situation  where  it  becomes  his 
interest  that  the  property  should  bring  the  least  sum.'  Agents 
may  be  quasi  trustees,  and  so  far  be  brought  within  the  prin- 
ciple of  the  broad  rule  applicable  to  trustees  generally  that 
they  cannot  become  purchasers  from  their  principals;  but  an 
agent  generally  comes  within  this  rule  only  when  his  agency 
is  so  connected  with  the  sale  as  to  make  it  his  duty  to  obtain 
the  best  terms  for  his  principal,  when  he  cannot  be  agent  to 
sell  and  principal  to  buy. 

But  after  the  trust  is  executed  a  trustee  stands  in  the  same 
position  as  a  stranger.  If,  as  such  trustee,  he  has  made  a  sale 
under  his  power,  or  in  good  faith  has  otherwise  fully  discharged 
his  trust,  so  that  he  no  longer  occupies  confidential  relations  to 
any  one  claiming  the  property,  he  is  not  by  law  forbidden  to 
deal  with  what  w^as  the  trust  property  the  same  as  a  stranger; 
and,  acting  in  good  faith,  he  may  become  the  owner  by  pur- 
chase or  otherwise.^ 

§  9.  Contiuuetl  —  Exceptions  to  anil  qualifications  of  tho 
rnle.  Where,  however,  a  trustee  has  an  interest  to  protect  by 
bidding  at  a  sale  of  the  trust  property,  and  for  this  purpose 
makes  a  special  application  to  the  court  for  permission  to  bid, 
which  upon  the  hearing  of  all  the  parties  interested  is  granted, 
he  may  make  a  purchase  which  is  valid  and  binding  upon  all 
the  parties  interested,  and  under  Avhich  he  can  acquire  a  perfect 
title.^  So,  also,  where  a  trustee  has  purchased  land  at  his  OAvn 
sale  which  is  afterwards  clearW  and  unequivocally  affirmed  by 
the  beneficiary,  if  all  parties  have  acted  in  good  faith,  and  the 
beneficiary,  being  under  no  disability  and  with  full  knowledge 
of  all  the  facts,  has  consented  thereto,  he  may  be  concluded 
thereby,  and  the  title  in  the  hands  of  the  trustee  be  unassail- 
able for  this  cause.* 

1  Martin  v.  Wyncoop,  12  Ind.  260.    79  N.  C.  426;  Michoud  v.  Girod,  4 

2  Bush   V.    Sherman,   80    111.    IGO;    How.  (U.  S.)  503. 

Watson  V.  Sherman,  84  111.  263.  ■'Boerura  v.  Schenck,  41  N.  Y.  182 ; 

3  Gallatin  v.  Cunningham,  8  Cow.  Brantly  v.  Cheeley,  42  Ga.  209;  Scott 
(N.  Y.)  361 ;  Colgate  v.  Colgate,  23   v.  Mann,  33  Tex.  721. 

N.  J.  Eq.  372 ;  Froneberger  v.  Lewis, 


PAUTIES.  93 

A  niailvcd  exception  to  the  rule  is  also  made  in  favor  of 
guardians  ad  litem.  I'nlikc  other  guardians  and  orcUnary 
trustees,  a  guardian  ad  Utem  lias  no  authority  or  control  over 
the  person  or  property  of  the  infant  for  whom  he  acts,  and  no 
right  to  receive  or  administer  the  ])roceeds  of  the  n»inor's 
property  which  may  be  sold  in  the  suit  or  pioceeding  in  which 
he  acts.  If  ho  has  fairly  advised  the  court  of  the  infant's 
rights,  and  done  all  for  him  that  the  facts  of  the  case  required 
him  to  do,  he  may  purchase  and  hold  in  his  own  right  the 
property  of  the  infant,  sold  under  an  order  of  court  in  the 
cause  in  which  he  was  appointed,  provided  such  purchase  was 
in  good  faith  and  for  a  full  and  valuable  consideration  paid 
by  him. 


9i 


CONTRACT   OF   SALE. 


CHAPTER   III. 


THE  MEMORANDUM. 


1. 

Contract    and     memorandum 

§  9. 

The  consideration. 

distinguished. 

10. 

The  purchase  price. 

2. 

Statutory  requirements. 

11. 

Description  of  the  property. 

3. 

The  signature. 

13. 

The  interest  to  be  conveyed. 

4. 

Signature    of    one  party  only 

13. 

Time. 

sufficient. 

14. 

Receipts. 

5. 

Signature  by  agent. 

15. 

Letters. 

6. 

Signature  by  corporation. 

16. 

Telegrams. 

7. 

The  contracting  parties. 

17. 

Delivery. 

8. 

The  terms. 

§  1.  Contract  and  niemorandnni   distinguished.    It  is  a 

familiar  proposition  that  contracts  for  the  sale  of  land,  to  in- 
sure legal  enforcement,  must  be  in  writing.  Strictly  speaking, 
however,  this  is  an  error;  for  it  must  be  observed  that  the  con- 
tract itself,  and  the  memorandum  which  is  necessary  to  its 
validity  under  the  statute  of  frauds,  are  in  their  nature  differ- 
ent and  distinct  things.^  The  contract  itself  in  a  majority  of 
cases  is  fully  made  by  parol  before  the  memorandum  is  pre- 
pared, and  may  be  perfect  and  complete,  and  under  certain 
circumstances  enforceable  without  having  been  reduced  to  Avrit- 
ing.  The  contract  itself,  so  far  as  respects  it  validity ,2  is  unaf- 
fected by  the  statute,  and  if  executed  the  rights  and  obligations 
of  the  parties  remain  the  same  as  though  a  strict  compliance 
had  been  made.* 


1  Lerned  v.  Wannemacher,  9  Allen 
(Mass.),  416;  Williams  v.  Bacon,  3 
Gray  (Mass.),  391;  Ide  v.  Stanton,  15 
Vt.  690;  Gale  v.  Nixon,  6  Cow.  (N.  Y.) 
445;  and  see  Montgomery  v.  Ed- 
wards, 46  Vt.  151. 

-  Mr.  Causten  Browne,  in  his  valu- 
able treatise  on  the  statute  of  frauds, 
lias  defined  the  operation  of  the  stat- 
ute as  the  mere  prescription  of  a  rule 
of  evidence.  In  the  last  (4th)  edition 
be  recedes  somewhat  from  his  propo- 
sition, though  still  asserting  his  be- 
lief that  this  view  is  the  true  one.  It 
would    seem    that    this    proposition 


should  pass  unchallenged  as  a  rule 
that  is  fully  sustained  by  reason  and 
precedent,  and  that  he  truly  states 
when  he  says:  "  The  cases  which  are 
inconsistent  with  it  rest  upon  uncer- 
tain ground."  Whatever  may  be  its 
effect  in  respect  to  its  other  clauses 
it  is  certain  that  the  construction  of 
and  operation  given  to  the  fourth  sec- 
tion—  the  one  relating  to  contracts 
and  sales  of  lands  —  by  the  courts  of 
the  country,  is  in  full  accord  with 
Mr.  Browne's  first  definition. 

3  Ryan  v.  Tomlinson,  39  Cal.  639; 
Stone  V.  Dcnnison,  18  Pick.  (Mass.)  1. 


MKMOBAXDIM.  95 

§  2.  Statutory  riMiulrciucnts.  The  fjucstion  as  to  what 
constitutes  a  memorandum  or  note  in  writing,  signed  by  the 
party  to  be  charged,  in  compliance  with  the  requirements  of 
the  statute,  has  been  the  subject  of  much  discussion  and  greatly 
varying  decisions  ever  since  its  adoption.  The  natural  repug- 
nance of  right-thinking  men  to  pci-iuit  the  success  of  unfair 
dealings  has  furnished  many  instances  where  the  language 
and  meaning  of  the  statute  has  been  manifestly  strained;  and 
many  cases  have  gone  to  the  very  verge,  if  not  beyond  the 
bounds,  of  a  reasonable  and  fair  constructi(»n,  or  rather  facts 
have  been  strained  to  constitute  a  compliance  with  statutory 
requirements. 

The  statutorv  directions  concerning  the  form  and  contents 
of  memoranda  of  sale  are  at  best  extremely  meager,  and 
(|uestions  relative  to  their  sulficiency  in  this  particular  are 
largely  left  to  the  discretion  of  the  courts.  It  is  a  peremptory 
mandate  of  the  statute  that  they  shall  be  in  writing  and  signed 
by  the  person  to  be  charged  or  his  agent;  but,  aside  from  this, 
form  is  not  important,'  nor  need  they  be  attended  with  any 
particular  solemnities.-  And  while  they  must  be  in  writing, 
the  method  employed  is  immaterial,  for  the  written  characters 
may  consist  of  manuscript  or  print,  or  both  combined;^  and 
though  made  with  a  lead-pencil  they  will  still  be  sufficient.^ 
Nor  is  it  neccssar}'  that  the  contract  be  evidenced  by  a  single 
document,"^  for  all  the  contemporaneous  writings  between  the 
parties  relating  to  the  same  subject-matter  are  admissible  in 
evidence  to  show  the  transaction."  It  is  essential  that  all  the 
terms  of  the  contract  be  specifically  and  distinctly  set  forth; ' 

iDoty  V.  Wilder,    1",  III.  407;  Mc-  SMcConncll  v.  Brillhart,  17  111.  354: 

Connell  v.Briilhart,  17  111.  354;  Tripp  Whelan  v.   Sullivan,  102  Mass.  204; 

V.  Bishop,  56  Pa.  St.  424;  Jenkins  v.  Johnson  v.  Buck,  35  N.  J.  L.  338. 

Harrison,  66  Ala.  345.  •'Niciiolsv.  Johnson,  10  Conn.  192; 

^Brj-ne   v.  Marshall,  44  Ala.  355;  Abed  v.  RadclilT,   13  John.  (N.  Y.) 

Williams    v.    Morris,   95   U.  8.  444;  279;  McGuire  v.    Stevens,   42    Miss. 

Hawkins  v.  Chace,  19  Pick.  (Mass.)  724. 

502.  "  Davis  v.  Shields,  26  Wend.  (N.  Y.) 

'But  when  a  printed  form  is  filled  341:  Anderson  v.    Harold.  10  Ohio, 

by  writing,  tlie  written  part  will  con-  399;  Pliillips  v.  Adams,  70  Ala.  373; 

trol  in  construing  the  contract.  Gault    v.    Stormont,   51    Mich.   636; 

*  Merritt  v.  Ciason,  12  John.  (N.  Y.)  Jenkins  v.  Harrison,  66  Ala.  345;  Ide 

102.  V.  Stanton,  15  Vt.  685. 


96  CONTRACT   OF    SALK. 

that  the  subject-matter  be  stated  or  described  with  convenient 
certainty;'  and  that  the  parties  be  named  or  fully  identified. - 
Where  these  particulars  satisfactorily  appear  the  manner  in 
which  they  are  stated  makes  but  little  difference;  for  the  nu- 
merous cases  which  have  arisen  in  every  state  in  the  Union  in- 
volving the  construction  of  the  statute  of  frauds,  and  m  which 
the  principles  wiiich  must  control  in  such  construction  have 
been  discussed,  all  unite  in  formulating  the  rule  that  no  for- 
mal language  is  required,'  and  that  anything  from  which  the 
intention  may  be  gathered,  as  in  other  contracts,  will  be  suHi- 
cient;  and  that  any  kind  of  writing,  from  a  solemn  deed  to 
mere  hasty  notes  or  memoranda  in  books,  letters  or  papers, 
provided  they  contain  upon  their  face  or  by  reference  to  other 
writings  the  essential  matters  just  mentioned,  will  constitute 
a  sufficient  compliance  with  the  statute  and  take  the  contract 
out  of  its  operation.* 

A  substantial  difference  exists  in  some  states  between  the 
original  phraseology  of  the  statute  and  subsequent  re-enact- 
ments. Thus,  while  the  original  provision  required  the  mem- 
orandum to  be  signed  by  the  person  to  be  charged,  subsequent 
enactments  require  it  to  be  "  subscribed  by  the  party  by  whom 
the  sale  is  to  be  made."  ^    Under  such  a  statute  the  rulings 

1  Waterman  v,  Meigs,  4  Cush.  mits  the  ofTer  to  his  principal  bj'  let- 
(Mass.)  497 ;  O'Donnell  v.  Leaman,  43  ter,  and  afterwards  writes  to  the  pur- 
Me.  158;  Johnson  V.  Kellogg,  7  Heisk.  chaser  that  the  owner  has  accepted 
(Tenn.)  263;  Smith  v.  Stanton,  15  Vt.  the  offer,  and  the  agent  sends  to  the 
685.  principal  a  deed  to  be  executed  by 

2  Webster  v.  Ela,  5  N.  H.  540 ;  Ep-  him  in  accordance  witli  the  terms  of 
pich  V.  Clifford,  6  Col.  493.  such  offer,  which  deed  is  executed 

^McConnell  v.  Brillhart,  17  111.  354.  by  the  principal  and  returned  to  the 
■•Wood  V.  Davis,  83  111.  311;  Barry  agent,  and  the  purchaser,  upon  re- 
V.  Coombe,  1  Pet.  (U.  S.)  640;  McFar-  ceiving  the  letter  notifying  him  that 
son's  Appeal,  11  Pa.  St.  503;  Ewins  hisoffer  is  accepted,  goes  to  the  agent 
V.  Gordon,  49  N.  H.  444.  An  instru-  to  close  up  the  transaction,  and  the 
raent  which  contains  all  the  essen-  agent  then  refuses  to  consummate  the 
tials  of  a  complete  contract  may  be  trade,  these  facts  constitute  a  valid 
treated  as  such,  although  in  form  it  contract,  not  within  the  statute,  for 
purports  to  be  merely  a  receipt,  a  breach  of  which  tlie  purchaser  can 
Schweitzer  v.  Connor,  57  Wis.  177.  maintain  a  suit  for  damages  against 
Where  a  party  desiring  to  purchase  the  owner  of  the  land.  Wood  v. 
land  applies  to  the  agent  of  the  owner  Davis,  82  111.  311. 
and  makes  an  offer  definite  as  to  *  This  is  the  language  of  the  New 
price,  terms,  etc.,  and  the  agent  sub-   York  statute. 


MEMOKANDLM.  97 

are  much  more  strict  and  arbitrary  than  under  the  statute  in 
its  original  form.  An  express  and  distinct  agreement  in  writ- 
ing subscribed  by  the  vendor  or  liis  agent  is,  in  such  a  case,  an 
absolute  necessity,  and  a  contract  signed  by  the  vendee  only 
has  no  efTect  or  validity.' 

^  ;j.  The  signature.  The  only  important  formal  requisite 
mentioned  by  the  statute  is  tiiat  the  evidence  of  the  contract 
shall  bo  signed  by  the  person  to  be  charged  therewith  or  his 
agent  thereunto  lawfully  authorized.  This,  however,  is  im- 
perative; and  it  is  not  enough  that  the  note  or  memorandum 
of  the  agreement  is  in  the  luindwriting  of  such  party,  so  long 
as  his  name  does  not  appear  as  a  signature.-'  But  just  what  is 
to  be  regarded  as  a  signature  is  not  always  a  matter  of  easy 
determination.  In  the  earlier  cases  it  has,  in  many  instances, 
been  held  that  the  manner  or  place  of  signing  is  immaterial, 
provided  the  name  is  inserted  with  the  intention  of  giving  as- 
sent and  for  the  purpose  of  completing  or  closing  the  contract.' 
Hence,  a  contract  commencing,  "  I,  John  Smith,"  etc.,  but 
without  subscription  of  any  kind,  was  held  to  be  sufficiently 
signed.*     Uudoubtedl}^  when  the  name  so  written  is  intended 

iDavisv.  Shields.  26  Wend.  (N.Y.)  Ohio,  399;  Fulshear   v.  Randon,    IS 

341;  ChampUn  v.  Pairish,  11  Paige  Tex.  375. 

(N.  Y.),  406.  Thus,  a  written  agree-  <  See  Barry  v.  Coombe,  1  Pet.  (U.  S.) 
ruent  subscribed  by  the  owner  of  640;  Pennunan  v.  Hartshorn,  13 
land,  authorizing  a  real  estate  broker  Mass.  87;  Hawkins  v.  Chace,  19  Pick, 
to  sell  it  upon  certain  terms  therein  (Mass.)  502.  "But  it  may  be  ques- 
specilically  stated,  and  an  agree-  tioned,"  observes  Mr.  Browne, 
ment  to  purchase  the  property  upon  "  whether  this  is  justified  by  the 
these  terms  subscribed  bj'  a  pur-  autliorities.  Where  instruments  com- 
chaser,  subsequently  written  across  mencing  in  the  first  person  have  been 
the  face  of  the  paper  while  unrevoked  taken  to  be  well  signed,  without  sub- 
in  the  hands  of  the  brokei-,  do  not,  sequent  subscription,  they  generally 
taken  either  separately  or  together,  appear  to  liavo  been  so  attached,  or 
form  a  contract  for  the  sale  of  the  accompanied  by  acts  of  the  party  so 
land  binding  upon  the  owner.  Hay-  clearly  showing  that  he  regarded  the 
dock  v.  Stow,  40  N.  Y.  303.  instrument   as  complete  as  to  repel 

-Champliu    v.    Parrish,    11    Paige  the  presumption   of  an  intention  to 

(N.  Y.),  405 ;  Henry  v.  Colby,  3  Brews,  nuiko  a  further  execution."  Browne, 

(Pa.)    171;   Anderson  v.    Harold,  10  Stat.  Frauds.  §  357.     And  it  would 

Ohio,    399;    Wade    v.    Newbern,    77  seem  that    in   cases  of   instruments 

N.  C.  4G0.  conunencing  in  the  third  pei-son,  as 

3Clason  v.  Bailey,  14  Johns.  (N.  Y.)  "  Mr.  A.  B.  agrees,"  etc..  such  a  pre- 

484;    Hawkins   v.    Chace.    19   Pick,  sumption  does  not  arise.     Id. 
(Mass.)  502;  Anderson  v.  Harold,  10 
7 


98  CONTRACT   OF   SALE. 

for  a  signature  and  to  give  authenticity  to  the  instrument, 
courts,  in  furtherance  of  the  ascertained  intention  of  the  parties, 
will  give  effect  to  it  as  such ;  ^  but  the  later  and  better  rule  would 
seem  to  be,  that  names  in  the  body  of  an  instrument  are  not 
equivalent  to  signature  where  there  has  been  no  subscription,' 
for  usually  they  must  of  necessity  be  so  introduced  to  make  the 
instrument  intelligible;  while  in  every  document  drawn  with 
any  degree  of  formality  the  testatiom  clause  discloses  an  in- 
tention to  place  the  signature  at  the  end  if  to  be  appended 
at  all.3 

A  signature,  ordinaril}'-,  is  considered  as  consisting  of  a 
party's  name,  or  the  term  or  appellation  by  which  he  is  known 
and  identified  in  society.  It  may,  however,  be  a  full  name  or 
simple  initials,'*  or  even  a  mark,-^  provided  it  serve  the  purpose  of 
identification  and  at  the  same  time  show  intent.  Nor  is  it  ma- 
terial in  what  manner  the  signature  is  appended ;  for  it  makes  no 
difference,  so  far  as  the  signer's  liability  is  concerned,  whether 
he  writes  his  name  in  script  or  roman  letters,  or  whether  such 
letters  are  made  with  a  pen  or  with  type,  or  whether  he  has 
printed,  engraved,  photographed  or  lithographed  it,  so  long  as 
he  adopts  the  signature  as  his  own.^ 

Another  point  in  this  connection,  which  does  not  seem  to 
have  arisen  in  this  country,  consists  in  the  character  of  the 
signature;  that  is,  the  style  which  the  signer  assumes.  As 
previously  remarked,  a  man's  signature  is  generally  considered 
to  be  his  name;  3'et  he  ma}'^  sign  by  a  mark,  and  formerly  em- 
ployed only  a  device  by  way  of  seal  as  a  signet,  which  was 
considered  a  sufficient  signing.  Thus,  if  a  letter  is  signed 
"j^our  father,"  or  "  your  brother  "  without  other  words  of  iden- 
tification, is  this  a  signing  within  the  meaning  of  the  law? 
The  English  cases  would  imply  that  it  is  not,  and  that  a  paper 
so  attested  will  not  constitute  a  binding  agreement  on  the  part 

1  Barry  v.   Coombe,  1  Pet.  (U.  S.)       3  Thoaias  v.  Caldwell,  50  111.  138. 
040;  McConnell   v.  Brillhart,  17  111.       <  Sanborn    v.    Flagler,     9     Allen 
354;    Clason    v.    Bailey,    14    Johns^.  (Mass.),  474;    Palmer  v,    Stevens,    1 
(N.  Y.)  484;  Penniman  V.  Hartshorn,  Djnio  (N.    Y.),    471;    State  v.   Bell, 
13  Mass.  87.  16  N.  C.  313. 

2  Thomas  v.  Caldwell,  50  111.  138;  ^  Jackson  v.  Van  Dusen,  5  Johns. 
Hawkins  v.  Chace,   19  Pick.   (Mass.)  (N.  Y.)  144. 

502 ;  Wise  v.  Eay,  3  Iowa,  430 ;  McMil-       6  Weston  v.  Meyers,  33  111.  424. 
len  V.  Terrell,  23  Ind.  163. 


MEMOKANDUM.  99 

of  the  person  so  attesting.  It  is  there  held  that  it  is  not 
enough  that  tbe  party  be  identified,  and  that  there  may  be  in 
the  instrument  a  very  sulHcient  description  to  answer  the  pur- 
pose of  identification  without  a  signing;  that  is,  without  the 
party  having  either  put  his  name  to  it,  or  done  some  other  act 
intended  by  him  to  be  e(|uivulent  to  the  actual  signature  of 
the  name;^  3'et  it  is  dillicult  to  perceive  why  such  a  subscrip- 
tion, evidently  intended  to  identify  the  person  of  the  writer 
and  authenticate  the  paper  in  exactly  the  same  manner  as  the 
written  name,  does  not  satisfy  the  requirement  of  the  statute 
when  it  credits  no  ambiguity. 

A  misplaced  signature  may  usually  be  explained  by  parol 
testimony,  as  where  a  part}'-  by  mistake  signs  in  the  place 
marked  for  witnesses.  It  would  seem  from  the  early  English 
cases  that  in  matters  of  this  kind  little  or  no  discretion  was 
permitted  in  construction ;  and  Lord  Eldon  is  reported  as  say- 
ing, "  where  a  party  or  principal  or  person  to  be  bound  signs 
as,  what  he  cannot  be,  a  witness,  he  cannot  be  understood  to 
sign  otherwise  than  as  principal."  ^  The  correctness  of  this 
remark  has  been  questioned  in  later  English  decisions,  while 
the  general  tendency  of  the  American  cases  has  been  to 
permit  the  introduction  of  parol  evidence  to  show  intent. 
Undoubtedly  it  is  important  that  the  signature,  and  also  the 
seal,  of  an  instrument  should  be  in  the  usual  place;  yet  the 
mere  place  of  either  the  signature  or  the  sealing  is  not  conclu- 
sive as  to  the  intent  witli  which  they  are  madc.^ 

§  4.  Signature  of  one  party  only  suliicieut. —  Mutuality  is 
an  indispensable  ingredient  of  every  contract;  and  hence,  un- 
less both  parties  are  so  bound  by  the  agreement  that  each  may 
enforce  it  against  the  other,  it  can  have  no  operative  effect 
either  at  law  or  in  equity.  But,  while  this  principle  is  indis- 
pensable, it  by  no  means  follows  that  a  contract  bearing  the 
signature  of  one  party  only  is  incapable  of  enforcement  for 
this  reason.  The  statute  itself  only  requires  that  the  memo- 
randum shall  be  "signed  by  the  party  to  be  charged  there- 
with;" and  this  signature  is  prescribed  rather  as  a  necessary 
evidence  of  the  contract  than  as  an  essential  or  constituent 

iSee  Selby  v.  Selby,  SMeriv,  (Eng.  3  Rjeimrdson  v.  Boynton.  12  Alluu 

Ch.)  2.  (Mass.),  133;  Warren  v.  Chai)iuan,  115 

2  Coles  V.  Trecotliick,  9  Ves.  (Eng.)  Mass.  586;  and  see  Reed  v.  Drake,  7 

251.  Wend.  (N.  Y.)  345. 


100  CONTRACT   OF   SALE. 

part  of  the  engagement  itself.  Even  if  we  concede  that  mut- 
ualit}''  must  exist  at  the  time  the  agreement  is  entered  into, 
the  lack  of  one  signature  would  not  indicate  anything  to  the 
contrary,  but  only  shows  that  both  parties  have  not  been 
equally  vigilant  in  obtaining  the  legal  written  evidence  to 
prove  it.  But  it  is  now  well  settled  by  authority  that  mutual- 
ity of  remedy  existing  at  the  time  action  is  brought  is  all  that 
is  required  to  sustain  the  contract  or  confer  jurisdiction;^  and 
the  signature  of  one  party  only  will  be  sufficient,  provided  it  be 
the  one  against  whom  enforcement  is  sought.^  The  only  object 
of  the  statute  is  to  compel  the  production  of  written  evidence 
of  the  terms  of  the  contract  against  the  party  sought  to  be 
charged  thereon,  and  its  only  design  is  to  prevent  perjury  and 
subornation  of  perjury  by  refusing  the  aid  of  the  law  in  the 
enforcement  of  any  rights  claimed  under  it  against  him  with- 
out such  written  evidence.  Therefore,  the  end  and  object  of 
the  statute  is  attained  by  written  proof  of  the  obligation  of 
the  defendant  in  an  action  to  enforce;  he  is  the  part}^  to  be 
charged  with  a  liability  dependent  on  and  resulting  from  the 
evidence,  and  he  is  intended  to  be  protected  against  the  dan- 
gers of  false  oral  testimony.^ 

When  it  is  considered  that  it  is  not  the  agreement  which  is 
required  to  be  in  writing,  and  that  the  agreement  in  fact  is 
made  before  any  writing  is  had,  and  that  the  agreement  and 
the  memorandum  subsequently  made  to  evidence  it  are  not 
the  same,  the  reason  of  the  law  becomes  apparent. 

§  5.  Signature  hj  agent.  By  the  first  and  third  ^  sections 
of  the  statute  of  frauds,  as  originally  adopted,  the  writing  is 
required  to  be  signed  by  the  parties  to  the  agreement,  or  their 

iDresel  v.  Jordan,  104  Mass.  412;  2  Thayer  v.  Luce,  22   Ohio  St.  63; 

Thayer  V.  Luce,  22  Ohio  St.  62 ;  Gart-  Gartrell  v.    Stafford,    12    Neb.    552: 

rell  V.  Stafford,  12  Neb.  552;  Estes  Louber  v.  Connit,  36  Wis.  176;  Estes 

V.    Furlong,    59  111.  302 ;   Louber  v.  v.  Furlong,  59  III.  302 ;  Penniman  v. 

Connit,  36  Wis.  176.     Where  there  is  Hartshorn,    13    Mass.    87 ;    Ivory    v. 

a  bill  for  specific  performance  in  a  Murphy,  36  Me.  534 ;  Ide  v.  Stanton, 

court  of  equity  the  exhibition  of  the  15  Vt.   687;   McFarson's  Appeal,  11 

bill  makes  the  complainant  charge-  Pa.  St.    503;   Newby  v.    Rogers,   40 

able  as  on  a  memorandum  of  the  con-  Ind.  9;  Ives  v.  Hazard,  4  R.  I.  14; 

tract  signed  by  him,  and  this  renders  De  Cordova  v.  Smith,  9  Tex.  129. 

the  remedy  mutual  between  the  par-  3  Justice  v.  Lang,  42  N.  Y.  493. 

ties  at  the  time  when  tlie  action  is  cqju-  ^  Relating  to  leases,  etc. 
menced.     Ives  v.  Hazard,  4  R.  I.  14. 


MKMOKANKLM.  1"! 

agents  authorized  by  writing;  but  tlic  mcinoraiula  required  by 
the  fourth  and  seventeenth  sections  omit  this  hxtter  requisite, 
and  the  note  is  sufficient  if  signed  by  an  agent  duly  author- 
ized. In  the  re-enactment  of  the  statute  by  the  states  the  lan- 
guage of  the  original  has  in  the  main  been  closely  followed, 
and  the  authorization  of  the  agent  is  not  ordinarily  required  to 
be  in  writing  in  agreements  for  the  sale  of  lands.*  A  distinc- 
tion seems  to  have  been  made  in  this  particular  between 
agreements  by  which  an  interest  is  intended  to  be  actually 
passed  and  such  as  simply  contemplate  a  conveyance  of  such 
interest  by  other  and  future  documents.  Hence,  while  the 
agreement  must  be  in  writing,  yet  if  executed  by  a  person 
under  and  in  pursuance  of  a  delegation  of  authority,  such  au- 
thority need  not  be  so  evidenced;  and  if  the  agent  has,  in  fact, 
been  authorized  to  sign  in  behalf  of  his  principal,  and  does  so 
sign,  the  principal  will  be  bound  by  the  act." 

§  0.  Signature  by  corporation.  It  is  a  well-established 
rule,  governing  the  admissibility  of  extrinsic  evidence  to  show 
who  are  the  parties  to  be  bound  by  a  written  instrument,  that 
a  party  will  not  be  permitted  to  show  by  oral  testimony  that 
his  written  agreement,  understandingly  entered  into,  was  not 
in  fact  to  be  binding  on  him.  So  it  has  been  generally  held, 
where  individuals  have  assumed  obligations  over  their  own 
signatures,  that,  notwithstanding  the  addition  of  descriptive 
words  denoting  some  official  ti'ust  or  corporate  dignity,  parol 
evidence  is  inadmissible  to  show  that  it  was  the  intention  to 
make  the  instrument  the  obligation  of  the  corporation  which 
they  represented,  and  not  that  of  the  parties  executing  it.  The 
question  has  generally  arisen  in  the  case  of  promissory  notes 
and  obligations  of  like  character,  but  the  principle  is  not  con- 
fined in  its  application.  "Where  a  corporation  is  one  of  the 
contracting  parties,  such  corporation,  and  not  its  managers, 
directors  or  trustees,  should  assume  tlie  obligations  of  the  con- 

1  In  a  few  of  the  states  the  rule  is  v.  Wilder,  15   111.  -107  (but  the  rule 

otherwise,  and  the  agent's  authority  has  since  been  changed  by  statute  in 

must  be  in  writing.  Illinois).  A  memorandum  within  the 

-'Shaw  V.  Nudd.  8  Pick.  (Mass.)  9;  statute  held  sutncient  if  signed   by 

Chaniplinv.  Parrish,  11  Paige  (N.Y.),  the    authorized    agent    in    his    own 

405;    Blood   v.    Hardy,    15    ^le.    61;  name.        Conway    v.    Sweeney,    24 

Gowen  v.  Klous,  101  Mass.  454 ;  Doty  W.  Va.  643. 


102  CONTKACT    OF   SALE. 

tract;  and  the  name  of  the  corporation  should  appear  as  one  of 
the  parties,  both  in  the  body  of  the  contract  and  in  the  signa- 
ture.^ A  proper  and  safe  mode  of  executing  a  corporate  con- 
tract is  for  the  officers  or  agents  who  may  act  in  the  premises 
to  subscribe  the  name  of  the  corporation,  followed  by  their 
own  official  signatures.^ 

§  7.  The  contracting  parties.  Inasmuch  as  no  contract  can 
be  made  without  parties  competent  to  contract,  so  it  naturally 
follows  that  no  contract  can  be  enforced  unless  the  parties  are 
named  or  designated;  and,  as  parol  evidence  is  inadmissible  to 
supply  the  terms  or  cure  the  defects  of  a  written  agreement, 
the  parties  form  the  first  inquiry  in  considering  a  memoran- 
dum of  sale.  It  is  of  vital  importance,  therefore,  that  the 
memorandum  should  show  who  are  the  parties,  either  by  direct 
designation  or  by  reference  sufficient  to  fully  identify  them;' 
for,  even  though  properly  signed  by  the  party  to  be  charged, 
if  it  nowhere  appears  who  the  opposite  party  is,  or  if  though  a 
party  be  named  he  is  not  with  certainty  identified,  the  writing 
will  be  insufficient  to  support  an  action  brought  upon  it.*  In 
like  manner,  if  both  parties  are  named,  yet  by  such  ambiguous 
insertion  that  it  is  impossible  to  ascertain  which  of  the  parties 
is  vendor  and  which  vendee,  the  instrument  will  be  without 
effect.* 

§  8.  The  terms.  It  is  an  invariable  rule  that  every  agree- 
ment which  the  law  requires  to  be  in  writing  must  be  certain 
in  itself,  or  capable  of  being  made  so  by  reference  to  other 
writings.^     Form,  as  we  have  seen,  is   unimportant,  provided 

iThus,  where  a  note  was  made  by  101  Mass.  449;  Thornton  v.  Kelly,  11 

parties  under  the  style  of  "We,  the  R.  I.  498. 

trustees  of  the  Methodist  Episcopal  ^  Osborn   v.   Phelps,   19  Conn.   63; 

Church  in  Lebanon,"  etc.,  and  signed  Sherburne  v.  Shaw,  1  N.  H.  157.  This 

and  sealed  by  the  several    persons  question    is    very    thoroughly    and 

composing  such  trustees,  held,   that  learnedly    reviewed    in    Grafton  v. 

the  note  was  individual,  and  parol  Cuinmings,  99  U.  S.  100. 

proof  could  not  be  received  to  vary  5  Bailey  v.  Ogden,  3  Johns.  (N.  Y.) 

it.     Ilypes  v.  Griffin.  89  111.  134.  399.     But  in  case  of  sales  of  chattels 

2  Gillett  V.  Bank,  7  111.  App.  499.  the  late  tendency  of  courts  is  to  per- 

3  Nichols  V.  Johnson,  10  Conn.  192;  mit  the  admission  of  parol  evidence 
Webster  v.  Ela,  5  N.  H.  540;  Brown  as  an  aid  to  interpretation. 

V.  Whipple,  58  N.  II.  229 ;  Farwell  v.  6  Abeel  v.  Radcliff,  13  Johns.  (N. 
Lowther,  18  111.  253 ;  Grafton  v.  Cum-  Y. )  279 ;  Nichols  v.  Johnson,  10  Conn, 
mings,  99  U.  S.  100;  Gowen  v.  Klous,    193;  Boardman  v.  Spooner,  13  Allen 


-MlMiilcAMJLM.  103 

the  purport  of  the  undertaking  is  unmistakably  expressed;  and 
any  note  or  memorandum  which  furnishes  evidence  of  a  com- 
plete and  practicable  agreement  is  sufficient  to  meet  the  re- 
quirements of  the  statute.'  Parol  evidence  may  be  received 
to  explain  latent  ambiguities  or  to  apply  the  instrument  to  the 
subject-matter;-  but  the  essential  terms  can  only  be  ascertained 
from  the  writing  itself,  and  cannot  be  supplied  by  parol.^ 
Were  the  rule  otherwise  it  would  at  once  introduce  all  the 
mischiefs  which  the  statute  was  designed  to  prevent.  It  is 
necessary,  therefore,  that  all  the  terms  be  definitely  settled 
and  the  contract  concluded ;  for  if  any  material  part  still  rests 
in  treat}^  or  remains  to  be  settled  by  further  negotiation,  or  if 
any  of  the  terms  cannot  be  ascertained  under  the  rule  first 
stated,  the  contract,  for  all  practical  purposes,  is  a  nullity  and 
incapable  of  specific  enforcement.*   If  the  instrument  is  couched 

(Mass.),  353;  James  V.  Muir,  3-J  Mich.  I    paid  for  it  (supposed    about    six 

223 ;  Tice  v.  Freeman,  30  Minn.  389 ;  months),    with   the    expense  of  the 

Norris  v.  Blair,  39  Ind.  90 ;  Buck  v.  deed ;  also  the  taxes  for  one  year."  It 

Pickwell,  27  Vt.  167 ;  Massey  v.  Hack-  was  held  that  this  was  a  valid  con- 

ett,  12  La.  Ann.  54;  Webster  v.  Ela,  tract  or  sale.     Atwood  v.   Cobb,  16 

5  N.  H.  540.  Pick.    (Mass.)    227.     A  writing:    ran 

1  Williams  v.  Morris,  95  U.  S.  444;  thus:  "  Augestthe  20  1850  i  do  herby 

Hurley  v.  Brown,  98  Mass.  545.  agree    tht    Jonathan    Phillips    shall 

-  Barry  v.  Coombe,  1  Pet.  (U.  S.)  have  the  land  wicli  he  is  posetion  of 

640;  Clark  v.  Burnham,  2  Story  (C.  now  for  the  labor  he  don   for  mo 

Ct),  1;  Tice  v.   Freeman,  30  Minn,  overage,  and  this  shall  be  his  wrecept 

389 ;  Baldwin  v.  Shannon,  43  N.  J.  L.  for  all  my  writes  and  claim  against 

59G;   Lovojoy   v.    Lovctt,   124  Mass.  the  land.    (Signed)  David  Phillips." 

270.  Held,  an  agreement  to  convey  sufB- 

3  Dung  V.  Parker,  52  N.  Y.  494;  cient  for  equity  to  execute,  and  not 
Baltzen  v.  Nico^ay,  53  N.  Y.  467;  within  the  statute.  Phillips  v. 
Brown  v.  Whipple,  58  N.  H.  229;  Swank,  120  Pa.  St.  76. 
Ridgway  v.  Ingram,  50  Ind.  145;  ■'McGuire  v.  Stevens,  42  Miss.  724; 
O'Donnell  v.  Leeman,  43  Me.  160:  Telegraph  Co.  v.  Telegraph  Co.  39 
Morton  v.  Dean,  13  Met.  (Mass.)  385;  N.  J.  Eq.  160.  If  parties  negotiating 
Elliot  V.  Barrett,  144  Mass.  256.  An  for  the  sale  of  a  tract  of  land  agree 
action  was  brought  upon  the  follow-  in  writing  upon  a  specified  price  per 
lug,  which  was  signed  by  both  par-  acre,  but  that  the  vendor  shall  take 
ties:  "  This  certifies  that  I /(arc  so/^r'  in  payment  a  house  and  lot  of  tho 
to  the  plaintiir  "about  five  acres  of  vendee,  at  cash  value,  to  be  pro- 
land,  more  or  less,  being  the  same  nounced  by  two  persons  (not  naming 
which  I  bought  of  him,  in  considera-  them),  or  the  money,  by  certain  in- 
tiou  of  the  same  sum  which  I  paid  stalments,  in  case  the  vendtje  shall 
him  for  the  same,  with  interest  from  prefer  paying  the  money,  and  after- 
the  time  I  purchased  the  same  till  ward  (the  vendee  not  having  elected 


104  CONTKACT   OF   SALE. 

in  language  so  vague  as  to  be  incapable  of  being  understood 
the  same  result  will  follow,  for  a  legal  promise  must  mean 
something  distinct  and  definite  —  something  capable  of  being 
understood  and  of  being  carried  into  effect. 

§  9.  The  consideration.  It  is  as  true  concerning  agreements 
in  respect  to  sales  of  land  as  of  other  commercial  transactions 
that  no  binding  contract  can  exist  unless  based  upon  a  suffi- 
cient consideration.  Yet,  notwithstanding  the  consideration 
forms  an  essential  and  material  part  of  the  contract,  it  is  not 
necessary,  as  a  rule,  that  it  should  be  expressed  in  the  memo- 
randum; for  it  is  a  general  principle,  applicable  to  all  instru- 
ments or  agreements,  that  whatever  may  be  fairly  implied 
from  the  terms  or  language  employed  is,  in  judgment  of  law, 
contained  in  them.  Hence,  if  the  agreement  be  so  stated  that 
a  consideration  may  be  implied  or  inferred,  it  is  as  effectual  as  if 
expressly  appearing  on  its  face.^  Indeed,  a  contract  to  convey 
land  upon  payment  of  the  stipulated  price  is  in  itself  evi- 
dence of  a  mutual  agreement  of  the  vendor  to  sell  and  the 
vendee  to  purchase;  and  the  agreement  of  one  party  forms  a 
sufficient  consideration  for  that  of  the  other.^  Such  considera- 
tion is  ample  for  all  purposes,  provided  the  promises  are  con- 
current and  obligatory  upon  both  parties  at  the  same  time.^ 

Marriage  is  a  sufficient  consideration  to  support  a  conveyance 
of  land,''  and  may  properly  form  the  basis  of  an  agreement 
concerning  the  same.  So,  also,  the  adjustment  of  a  contro- 
versy honestly  inaugurated,  in  respect  to  property  interests,  is 
a  sufficient  consideration  to  support  an  agreement  concerning 

to  pay  money  for  the  land)  the  par-  (N.  Y.)  35;  Goward  v.  Waters,  98 
ties,  by  indorsement  on  the  writing,  Mass.  596 ;  Sage  v.  Wilcox,  6  Conn, 
appoint  two  persons  to  value  the  81 ;  Reed  v.  Evans,  17  Ohio,  128. 
house  and  lot,  who  attempt  to  do  so  This  has  been  held  even  where  the 
but  differ  in  opinion,  whereupon  statute  provides  fgr  same  "  note  or 
they  verbally  agree  to  make  another  memorandum,  expressing  the  consid- 
appointment  at  some  other  time  not  eration."  See  Eno  v.  Woodworth,  4 
specified,  the  contract  is  too  incom-   N.  Y.  249. 

plete  to  be  enforced  in  a  court  of  ^Ewins  v.  Gordon,  49  N.  H.  444; 
equity.  Baker  v.  Glass,  6  Munf.  Vassault  v.  Edwards,  43  Cal.  458; 
(Va.)  213.  Murphy  v.  Rooney,  45  Cal.  78;  Pool 

lAdkins  v.  Watson,  12  Tex.   199;    v.  Docker,  92  111.  501. 
Hargraves    v.    Cook,    15    Ga.    321;       ^Lester  v.  Jewett,  12  Bai-b.  (N.  Y.) 
Rogers  v.  Kneeland,  10  Wend.  (N.  Y.)   502. 
252 ;  Douglass  v.  Howland,  24  Wend.       *  Otis  v.  Spencer,  102  111.  622. 


MKMuKANDL'M.  l05 

the  suljjoct-niattcr  of  sueli  controversy.^  Consideiations  wliich 
are  given  for  coiiiproiiiisin^' doubtful  rights  and  settlin;.^  bound- 
aries are  held  to  be  good;-  and  generally  a  prejudice  to 
the  pai'ty  to  whom  a  promise  is  made,  as  well  lis  a  benefit  to 
the  part}'  maUing  it,  is  a  sudicient  consideration  to  render  the 
promise  obligatory.' 

It  is  almost  the  universal  practice,  however,  in  all  formally 
drawn  agreements,  to  insert  a  nominal  consideration,  usually 
the  sum  of  one  dollar.  As  a  matter  of  fact,  this  sun\  is  rarely 
ever  paid,  Init  the  acknowledgment  of  its  receipt  amounts  to 
an  estoppel;  and  a  valuable  consideration,  however  small  or 
nominal,  if  given  or  stipulated  for  in  good  faith,  is,  in  the  ab- 
sence of  fraud,  sulHcient  to  sustain  a  promise  and  take  the 
case  out  of  the  operation  of  the  statute.'* 

§  10.  The  purchase  price.  It  must  be  understood,  how- 
ever, that  the  remarks  of  the  foregoing  section  have  reference 
only  to  the  consideration  or  motive  of  the  contract  and  not  to 
the  purchase  price  to  be  paid  for  the  land;  for  a  price,  either 
fixed  b}'  the  parties,*  or  cai)able  of  being  ascertained  by  com- 
jiutation  from  some  specific  facts,"  or  by  the  appraisal  of  some 
person  referred  to  in  the  memorandum,^  is  an  essential  ele- 
ment of  every  contract  of  sale.^     A  memorandum  which,  while 

'As  where  a  testator  devised  the  'Sales  v.  Hickman,  20  Pa.  St.  180. 
larger  portion  of  his  estate  to  a  part  *>  Atwood  v.  Cobb,  16  Pick.  (Mass.) 
of  his  children,  leaving  the  otliers  227.  An  agreement  to  sell  land  for 
but  a  small  portion,  and  the  latter  "about"  $700,  and  a  sum  sutlicient 
filed  a  bill  in  chanctiry  to  set  aside  to  reimburse  the  vendor  for  expenses 
the  will  in  order  to  compel  an  equal  incurred  in  a  suit  then  pending  con- 
distribution  of  the  property,  an  cerning  said  land,  held  sudiciently 
agreement  between  all  the  heirs,  definite  as  to  consideration  to  be 
pending  the  litigation,  for  an  equal  specifically  enforced.  Wilbourn  v. 
distribution  of  the  estate,  and  in  ad-  Bisiiop,  02  Miss.  3-41. 
justment  of  the  controversy  in  re-  '^  Brown  v.  Bellows,  4  Pick.  (Mass.) 
spect  to  the  will,  was  lield  to  be  based  178. 

upon  a  sufficient  consideration.  Pool  '^Kleinpeter  v.   Hannigan,    21    La. 

V.  Docker,  92  111.  501.  Ann.  1!)G;  Eppich  v.  Clilford,  0  Col. 

-'Zane  v.  Zane,  G  Munf.  (Va.)  40G;  4'J3;    .Si)angler   v.    Danfurtli,   (=5   111. 

Moore   v.    Fitzwater,    2   Kand.  (Va.)  152:  CJrace   v.    Dennison.    114   Mass. 

442.  10;    Huir   v.    Shcpard,    58   Mo.    242; 

3  Overstroet  v.  Phillips,  1  Lilt.  (Ky.)  Phelps   v.    Stillings.    60   N.    II.    505; 

120.  Grafton  v.  Cununings,  90  U.  S.  100. 

*  Lawrence  v.  McCalmont,  2  How,  Indeed,  this  necessarily  follows  from 

(U.  S.)  42G.  the  rule  providing  that  every  agree- 


106  CONTRACT   OF   SALE. 

professing  to  give  the  right  to  purchase,  yet  names  no  price  or 
terms,  is  too  imperfect  to  be  treated  as  a  valid  contract;^  and 
unless  some  part  of  the  purchase  money  has  been  paid  and  the 
purchaser  let  into  possession,-  the  contract  would  practically 
be  void  for  all  purposes.^  If  it  appears  from  the  agreement 
that  the  price  has  already  been  paid,  the  reason  of  the  rule 
does  not  apply,  and  no  price  need  be  stated,* 

An  exact  statement  of  price  in  numerals  expressive  of  the 
denominations  of  money  is  not  necessary,  but  some  unequiv- 
ocal and  positive  method  of  ascertaining  the  price  must  be 
agreed  upon.^ 

§  11.  Description  of  the  property.  It  is  a  familiar  rule  in 
tliis  branch  of  the  law  that  a  contract  which  equity  will  spe- 
cifically enforce  must  be  certain  in  its  terms,  and  the  certainty 
required  has  reference  both  to  the  description  of  the  property 
and  the  estate  to  be  conveyed.  Uncertainty  as  to  either,  not 
capable  of  being  removed  by  extrinsic  evidence,  will  invalidate 
the  contract.^     But  while  an  unequivocal  description,  giving 

ment  wliicb  is  required  to  be  in  writ-  (Signed)  T.  M.  Eads,  agent  for  Alex, 

ing  by  the  statute   of  frauds  must  Piatt,"    held    too    indefinite    for    a 

be  certain  in  itself,  or  capable  of  be-  memorandum  under  the  statute  of 

ing  made  so  by  reference  to  some-  frauds.     Fry  v.  Piatt,  33  Kan.  63. 

thing  else  whereby  the  terms  can  be  *  Holman  v.  Bank  of  Norfolk,  13 

ascertained.     Abeel    v.    Eadcliff,    13  Ala.  369. 

Johns.  (N.  Y.)  297.  ^  Thus,  a  contract  for  the  sale  of  a 

1  Sales  V.  Hickman,  20  Pa.  St.  180 ;  village  lot  at  whatever  price  the  first 
Williams  v.  Morris,  95  U.  S.  444 ;  lot  sold  in  the  vicinity  should  realize 
Parkhurstv.  Van  Courtland,  IJohns.  was  held  not  to  be  void  for  uncer- 
Ch.  (N.  Y.)  273;  Phelps  v.  Stillings,  tainty,  an  adjacent  lot  having  been 
60  N.  H.  505;  Phillips  v.  Adams,  70  sold  for  $125  before  the  action  was 
Ala.  373.  commenced  on  said  contract.     Cun- 

2  Temple  v.  Johnson,  71  111.  13.  ningham  v.  Brown,  44  Wis.  73.  The 
Such  a  contract  would  be  void,  even  defendant  agreed  that  the  plaintiff 
thoughthepurchaser  had  been  placed  should  "have  the  refusal  of  a  farm 
in  possession,  where  no  part  of  the  bought  by  me  for  the  sum  of  $1,940, 
purchase  money  had  been  paid,  upon  his  complying  with  certain  con- 
Phillips  V.  Adams,  70  Ala.  373.  ditions,  which  conditions  he  has  com- 

3  Carr  v.  Building  Co.  19  N.  J.  Eq.  plied  with."  This  was  held  to  be  a 
434.  But  see  Ellis  v.  Bray,  79  Mo.  valid  contract,  and  that  it  expressed 
237.  A  vyriting  in  form:  "Yates  the  price  for  the  land.  Bird  v.  Rich- 
Center,     Ks.,    June     13,    1S83.     Re-  ardson,  8  Pick.  (Mass.)  253. 

ceived  of  J.  B.  Fry  $50,  for  part  ^Whelan  v.  SulUvan,  103  Mass.  204; 
payment  of  purchase  money  for  Sec.  Peters  v.  Phillips,  19  Tex.  74;  Tice  v. 
1,  T.  25,  R.  14,  Woodson  county,  Ks.    Freeman,  30  Minn.  389 ;  Ridgway  v. 


MEMORANDUM.  107 

t 

location,  area  and  boundaries,  is  a  literal  and  perfect  observ- 
ance of  the  rule,  a  less  particular  statement  will  usually  suffice, 
provided  it  contains  within  itself  the  proper  means  of  identifi- 
cation,^ as  by  reference  to  extrinsic  facts  or  other  instruments,* 
by  means  of  wliich  the  land  can  be  ascertained  with  sufficient 
certainty.''  "Where  the  description  does  not  identify  tiie  land, 
nor  state  directly  where  it  is,  nor  indicate  any  e.xtrinsic  fact 
from  which  its  locality  can  be  ascertained  and  fixed,  specific 
performance  cannot  be  decreed,  nor  can  parol  evidence  be  re- 
ceived to  fix  the  locality.* 

§  I'-J.  The  interest  to  be  conveyed.  The  memorandum  re- 
quired by  the  statute  of  frauds  to  maintain  an  action  on  a 
contract  for  the  sale  of  any  interest  in  land  must  clearly  show, 
either  by  itself  or  taken  in  connection  with  some  other  writing 
contemporaneous  with  or  referred  to  in  the  memorandum, 
what  that  interest  is.^  The  estate,  as  well  as  the  land,  must  be 
shown,  unless  by  necessary  legal  implication  the  interest  is 
the  entire  right  of  property  in  the  bargained  premises.  A 
memorandum  which  does  not  show  Avhether  it  relates  to  an 
estate  in  fee,  for  life  or  for  j^ears  has,  even  under  recent  de- 
cisions, been  held  insufficient;^  but  as  the  statute  in  most  of 
the  states  now  provides  that  in  the  sale  of  land,  where  no 
specific  estate  is  mentioned,  the  interest  conveyed  shall  be 
taken  to  be  the  fee,  this  branch  of  the  question  has  lost  much 
of  its  importance.  It  is  customary  in  stipulating  for  the  con- 
veyance that  the  land  shall  be  conveyed  by  good  and  sufficient 

Ingram,  50  Iiid.  1-15;  Cortelyon's  Ap-  way  t.  Ingrain,  50  Ind.  145;  Jordan 
peal,  103  Pa.  St.  576.  v.  Fay,  40  Me.  130;  Ferris  v.  Irving, 

1  White  V.  Hermann,  51  111.  243;   28  Cal.  645. 

Haven  v.   Richardson,  5  N,  H.  113:  ^Rj-an     v.    Davis,    5    Mont.    505; 

Brown  v.  Bellows,  4  Pick.  (Mass.)  179 ;  Bishop  v.  Fletcher,  48  Mich.  555 ;  Tice 

Kay  v.  Curd,  6  B.  Mon.  (Ky.)  100.  v.  Freeman,  30  Minn.  389;  Meyer  v. 

2  Washburn  v.  Fletcher,  42  Wis.  Mitchell,  75  Ala.  475;  Jones  v.  Car- 
152;  Tallman  v.  Franklin,  14  N.  Y.  ver,  59  Tex.  293;  Sherer  v.  Trow- 
589;  Norris  v.  Blair,  39  Ind,  70.  bridge,  135  Mass.  500. 

8  Ryersv.  Wheeler, 22  Wend.  (N.Y.)  sParwell  v.  Mather,  10  Allen 
148;  Worthington  v.  Hylyer,  4  Mass.    (Mass.),  322. 

19G;  Warrington  v.  Ayres,  40  N.  Y.  ^Farwell  v.  Mather,  10  Allen 
357;  McGuire  v.  Stevens,  42  Miss.  (Mass.),  322;  and  seeAbeel  v.  Radcliflf, 
724;  Johnson  v.  Craig,  21  Ark.  533;  13  Jolins.  (N.  Y.)  297;  Morton  v. 
Taylor  v.  Ashley,  15  Tex,  50;  Ridg-    Dean,  13  Mete.  (Mass.)  385. 


108  CUNTKACT    OF    SALE. 

* 

deed  in  fee-simple;  but  the  neglect  to  add  this  description  of 
the  character  of  the  estate  would  not  probably  affect  the  con- 
tract where  the  statutory  provision  above  referred  to  is  in 
force,  and  the  intention  of  the  parties  was  that  the  purchaser 
should  take  the  fee. 

§  13.  Time.  Although  it  is  a  fundamental  principle  that 
time  is  a  primary  and  indispensable  element  in  all  contracts, 
and  at  law  is  a  controlling  incident,  yet,  in  contemplation  of 
equity,  in  contracts  relating  to  land,  it  is  not  considered  as 
necessarily  of  their  essence.^  It  may  be  made  essential  by  an 
express  stipulation  of  the  parties,^  or  it  may  be  deemed  so  from 
the  nature  of  the  property  or  the  purpose  for  which  it  was 
purchased,*  or  from  other  circumstances  surrounding  the  case ;  * 
but,  as  a  general  proposition,  where  there  is  nothing  in  the 
contract  attaching  any  particular  importance  to  the  time  of 
performance,  time  will  not  usually  be  considered  material.^ 

Where  parties  intend  to  make  time  of  the  essence  of  the 
contract,  to  have  that  effect  in  equity  the  stipulation  must  bo 
clearly  and  unequivocally  expressed.  The  intention  must  be 
unmistakably  apparent  from  the  language  employed;  and 
when  such  language  leaves  no  room  for  doubt,  and  the  con- 
tract is  one  which  the  parties  are  competent  to  make,  it  will 
take  effect  according  to  its  terms,  and  be  binding  in  equity  as 
well  as  at  law."  To  accomplish  this,  form  is  not  material  pro- 
vided substance  is  found,  and  usually  any  language  will  be 
sufficient  which  clearly  provides  that  the  contract  shall  be 
void  in  case  of  the  non-fulfillment  of  the  prescribed  conditions.'' 
Merely  naming  the  time  of  performance,  even  with  the  stipu- 

1  Milnor  v.  Willard,  34  III.  38 ;  King   Furlong  v.  Barnes,  8R.  I.  226 ;  Hutch- 
V.  Ruckman,  20  N.  J.  Eq.  316:  Prince    eson  v.  McNutt,  1  Ohio,  18. 

V.  Griffin,  27  Iowa,  514.  murphy  v.  Lockwood,  21  111.  611 ; 

2  Mason    v,    Payne,    47    Mo.    517;    Glover  v.  Fisher,  11  III.  666;  Steele 
Kirby   v.  Harrison,  2  Ohio  St.  326;    v.  Branch,  40  Cal.  3. 

Knott  V.  Stepliens,  5  Oreg.  235 ;  Key-       « Scott  v.  Fields,  7  Ohio,  424 ;  Phelps 

nolds  V.  R.  R.  Co.  11  Neb.  186:  Bar-  v.   R.   R.   Co.  63   111.  468;  Prince   v. 

nard  v.  Lee,  97  Mass.  92;  Kimball  v.  Griffin,  27  Iowa,  514;  Grey  v.  Tubbs, 

Tooke,  70  111.  553.  43  Cal.    359;   Morgan  v.    Bergen,    3 

3  Jones  V.  Robbins,  29  Me.  351.  Neb.  209 ;  Snider  v.  Lehnherr,  5  Oreg. 
4Hoyt    V.    Tuxbury,    70    111.    331;  385. 

Grigg  V.   Landis,  21    N.  J.  Eq.  494;       f  Kimball  v.  Tooke,  70  111.  553. 


MEMOKAJs'DUM.  lUt) 

lation  last  stated,  will  not  impart  essential  character  where  it 
clearly  appears  that  such  stipulation  was  simply  formal,'  and 
such  contract  will  be  held  to  nieun  only  that  completion  shall 
he  made  within  a  reasonable  tune  and  substantially  according 
to  the  agreement,  regard  being  had  to  all  the  circumstances;' 
but  if  the  language  em))loyed  expressly  states  that  time  is  of 
the  essence.'^  or  if  it  otherwise  appear  that  ijoth  ])artics  in- 
tended to  fix  a  time  for  completing  the  contract  and  this  was 
to  be  literally  complied  with,  neither  party,  in  the  absence  of 
other  circumstances,  can  obtain  relief  from  the  consequences 
of  default. 

As  constituting  one  of  the  terras  the  time  of  performance 
should  be  stated ;  and  as  the  rule  is  imperaiive  that  a  contract 
cannot  rest  partly  in  writing  and  partly  in  parol,  it  necessarily 
follows  that  parol  evidence  is  not  admissible  to  fix  the  time 
when  a  written  contract  is  to  be  performed.  Hence,  there 
are  numerous  cases  which  hold  that  specific  enforcement  can- 
not be  decreed  when  the  contract  fixes  no  time  for  j)erform- 
ance;*  as  where  the  memorandum  states  the  purchase  price 
but  omits  the  time  of  payment.'^  It  might,  it  would  seem,  be 
urged  that,  reasoning  by  analogy,  payment  should  be  made 
within  a  reasonable  time;  yet  this,  it  is  contended,  would  only 
be  to  introduce  the  forbidden  element  of  uncertainty;  for  no 
rule  has  ever  been  devised  to  fix  the  limits  of  a  reasonable 
time,  nor  is  there  any  known  or  recognized  custom  to  fix  what 
is  thus  left  undetermined.  It  is  believed,  however,  that  this 
is  a  rather  extreme  view;  for  ordinarily,  where  no  time  is  ex- 
pressed in  a  contract  for  the  performance  of  its  terms,  the  law 
will  imply  that  it  shall  be  within  a  reasonable  time,*  the  cir- 
cumstances of  each  particular  case  furnishing  the  basis  for  de- 
termining what  is  a  reasonable  time."     This  doctrine  finds  its 

1  Barnard  v.  Lee,  97  Mass.  93;  Jones  Johnson  v.  Kellogg,  7  Heisk.  (Tonn.) 

V.  Robbins,  29  Me.  351.  262. 

-Jones    V.    Robbins,    29    Me.    351;  ^Gault  v.  Storuiont,  51  Mich.  G30. 

Waterman  v.  Button,  6  Wis.  265.  6  Driver  v.  Ford,  90  III.  59.");  Ilani- 

^  Missouri,  etc.   R.  R.  Co.  v.  Brick-  iltou  v.  Scully,  118  111.  192;  Water- 

lej',  21  Kan.  275;  Stow  v.  Russell,  o6  man  v.  Dutton,  6  Wis.  265. 

111.  18.  ^Within  a  month,  there  being  no 

••Gault  V.  Stormont,  51  Mich.  636;  special  circumstances.    Lowe  v.  Har- 

Gates    V.    Gamble.    53    Mich.    346;  wood,  139  Mass.  133. 
AVright    V.    Weeks,    25    N.    Y.    153; 


110  CONTKACT    OF    SALE. 

most  numerous  illustrations  in  contracts  connected  with  chat- 
tels, but  it  seems  it  is  equally  applicable  to  contracts  for  the 
sale  and  purchase  of  land.^ 

§  14.  Receipts.  As  previously  stated,  it  is  immaterial 
what  form  the  writing  Avhich  constitutes  the  agreement  may 
assume,  provided  it  contains  the  essential  elements  of  a  valid 
contract,  so  as  to  satisfy  the  requirements  of  the  statute  of 
frauds.  Hence,  a  receipt  for  purchase  money,  specifying  the 
terms  of  the  agreement  and  signed  by  the  vendor,  will  create 
a  binding  contract  which  may  be  enforced  in  equity  against 
him.^ 

§  1  5.  Letters.  "No  more  common  method  exists  for  the 
negotiation  of  sales  of  real  estate  than  through  the  media  of 
epistolary  correspondence,  and  numerous  examples  are  afforded 
in  the  reported  cases  of  binding  and  valid  contracts  effected 
in  this  manner.  "Where  there  is  a  distinct  offer  of  sale,  speci- 
fying terms  and  property,  and  the  offer  is  at  once  closed  by 
an  unqualified  acceptance,  the  contract  is  complete  and  ca- 
pable of  legal  enforcement.'  Such  a  contract,  so  made,  em- 
bodies all  the  essential  features  necessary  to  give  validity,  and 
in  its  operation  would  differ  from  none  made  by  personal  com- 
munication or  couched  in  more  formal  language. 

It  is  essential,  however,  that  all  the  terms  shall  be  capable 
of  ascertainment  from  the  correspondence  to  enable  a  court 
to  enforce  specific  performance  as  a  whole.  Hence,  if  there 
are  essential  elements  affecting  the  rights  of  the  parties  which 

1  See  Lowe  V.  Harvvood,  139  Mass.  Lincoln,  Neb.,  May  12,  1880.  Re- 
133.  ceived  of  A.  B.  twenty  dollars  as  for- 

2  Raubitschek  v.  Blank,  80  N.  Y.  fait  to  guaranty  the  payment  of  the 
478.  The  following  memorandum  balance  of  the  first  instalment  of 
in  writing,  viz. :  "  Denver,  Dec.  17,  interest  within  30  days  from  date 
1880.  Received  of  E.  the  sum  of  with  interest  at  10  per  cent,  per  an- 
twenty-five  dollars,  part  payment  num  on  E.  ^  of  S.  W.  J,  S.  29,  T.  9, 
for  lots  1,  2,  3,  in  block  28,  C.  &  E.  R.  9,  E.,  at  ^9  per  acre,  10  years' 
addition  to  Denver.  Consideration,  credit.  CD.," — ZieZd  sufficient  under 
$2,000.  (Signed)  M.  C,  byG.  &Co.,  the  statute  of  frauds.  McWilliams 
Agents," —  is  sufficient  to  take    the  v.  Lawless,  15  Neb.  131. 

contract  out  of  the  statute  of  frauds,  3  Matteson  v.  Scofield,  27  Wis.  671 ; 

and  the   contract  imported  by  said  Knight    v.    Cooley,    34    Iowa,    218; 

memorandum  will  be  specifically  en-  Thames  L.  &  T.  Co.  v.  Beville,  100 

forced.  Eppich  v.  Clifford,  6  Colo.  Ind.  309 ;  Otis  v.  Payne,  86  Tenn.  663. 
493.  A  memorandum  in  form :  "  |20. 


MEMORANDUM.  Ill 

are  not  implied  by  or  to  be  inferred  from  what  they  have 
agreed  upon,  but  left  open  for  future  consideration  and  adjust- 
ment, the  contract  as  a  whole  lacks  completeness,  and  no  ac- 
tion can  arise  upon  it.^  Again,  the  intention  of  a  present 
contract  should  appear;  for  while  men  may  and  do  contract 
by  letter,  and  such  contracts  are  always  upheld  and  enforced, 
it  is,  nevertheless,  a  method  that  courts  are  ever  inclined  to 
scrutinize  closely  and  construe  liberall3\  In  many  instances 
such  letters  are  intended  merely  as  preliminary  negotiation. 
Proposals  are  made  and  views  exchanged ;  prices  are  discussed, 
and  suggestions  offered  relative  to  the  property  under  consid- 
eration. From  all  this  a  strict  construction  might  possibly 
deduce  a  contract  within  the  meaning  of  the  statute  of  frauds, 
and  yet  such  might  not  have  been  the  actual  intent  of  the  par- 
ties. The  question,  therefore,  in  such  cases  always  is.  Did  the 
parties  mean  to  contract  b}'  their  correspondence,  or  were 
they  only  settling  the  terms  of  an  agreement  into  which  they 
formally  proposed  to  enter  after  all  its  particulars  had  been 
adjusted,  and  by  which  alone  they  intended  to  be  bound ?^  If 
upon  this  view  it  appears  that  the  letters  were  merely  the 
basis  for  a  contract,  or  if  it  is  reasonably  doubtful  whether 
■what  passed  was  only  treaty,  no  action  can  be  maintained  on 
them.^  This  is  particularly  true  if  the  party  attempting  to 
enforce  the  contract  has  done  nothing  under  it.* 

But  where  the  essential  requisites  appear,  and  no  doubt  can 
exist  as  to  intention,  the  contract  becomes  complete  when  the 
answer  containing  the  acceptance  of  a  distinct  proposition  is 
dispatched,  whether  by  mail  or  otherwise;*  provided,  how- 

1  Brown  v.R.  R.  Co.  44  N.  Y.  79;  (Mass.),  242;  Carter  v.  Shorter,  57 
Gates  V.  Nelles,  62  Mich.  444.  "Where  Ala.  253 ;  Knight  v.  Cooley,  34  Iowa, 
a  contract  is  made  between  parties  218;  Moulton  v.  Kershaw,  17  Rep. 
residing    at    a    distance    from   each  606. 

other  by  means  of  letters  passing  be-  ^  Errick  v.    Monette,    75  Ala.    75 ; 

tween   them,  it  is  the  duty  of  the  Gates  v.  Nelles,  62  Mich.  444. 

court,  the  letters  and  the  acts  of  the  *  Carr  v.  Duval,  14  Pet.  (U.  S.)  77; 

parties  being  proven,  to  determine  McDonald  v.  Bewick,  51  Mich.  79. 

their  legal  effect,  and  whether  they  *  A  telegram  accepting  an  offer,  if 

constituted  a  contract,  and  if  so  to  sent  within  the  time  agreed  upon, 

give    construction   to  the  contract;  completes  the  contract.     The  time  of 

and  it  is  error  to  submit  the  construe-  telegraphing  is  the   time  when  the 

tion   of  such   contract  to  the  jury,  contract   was  closed.     Perry  v.  Iron 

Ranney  v.  Higby,  5  Wis.  62.  Co.  5  Atl.  Rep.  632. 

2  Lyman    v.    Robinson,    14    Allen 


112  CONTKACT    OF    SALE. 

ever,  that  it  be  done  with  due  diligence  after  the  receipt  of  the 
communication  containing  the  proposal,  and  before  any  inti- 
mation is  received  that  the  offer  is  withdrawn;^  and  provided, 
further,  that  the  party  making  the  offer  was  alive  when  such 
offer  was  accepted.-  This  is  the  rule  recognized  by  all  the 
leading  authorities^  and  sanctioned  by  the  best  writers.*  Nor 
does  tiiis  rule  at  all  contravene  the  primary  rule  that,  to  con- 
stitute a  valid  contract,  the  minds  of  the  parties  must  meet  and 
their  joint  assent  be  manifest;  for  it  is  not  necessary  that  their 
wills  should  concur  at  the  same  moment  if  the  will  of  the 
party  receiving  the  proposition  is  declared  before  the  will  of 
the  party  making  it  is  revoked.  The  consent  of  one  party 
may  properly  precede  the  other,  provided  the  will  of  the  party 
offering  continues  down  to  the  time  of  acceptance;  and,  unless 
the  contrary  appear,  the  presumption  is  that  this  will  does 
continue,  upon  the  principle  that,  wherever  the  existence  of  a 
particular  subject-matter  or  relation  has  once  been  proved,  its 
continuance  is  presumed  until  the  contrary  is  shown  or  until 
a  different  presumption  is  afforded  by  the  subject-matter.'^ 

Nor  will  the  fact  that  the  parties  each  make  mention  of  cir- 
cumstances remotely  connected  with  the  sale,  which  are  to  be 
left  for  future  consideration,  affect  the  contract  or  render  it 
any  the  less  complete,  provided  they  do  not  partake  of  its 
terms;''  but  if  the  reply  to  an  offer  restate  the  terms  thereof 

1 K.  and  C.  had  lived  sixty  miles  3  Wheat  v.  Cross,  31  Md.  99;  Hutch- 

apai't  in  cities  between  which  was  a  eson  v.  Blakeraan,  3  Met.  (Ky.)  80; 

mail    couDnunication    twice  a  day.  Terrier  v.  Stover,  63  Iowa,  484;  Stone 

On  January  28tli  C.  wrote  to  K.,  ask-  v.  Harmon,  31  Minn.  512;  Trevor  "v. 

ing  terms  on  which  K.  would  sell  a  Wood,  36  N.  Y.  307;  Averill  v.  Hedge, 

parcel  of  land.     K.  replied  January  13  Conn.  436;  Levy  v.  Cohn,  4  Ga.  1. 

30th,  stating  his  terms.     K.'s  agent  *2  Kent's  Com.   477;  Story,  Sales 

did  not  deliver  the  letter  to  C.  until  (4th  ed.),  §  129. 

February  2d.    C.  at  once  had  the  title  5  Moore  v.    Pierson,   6  Iowa,   279; 

examined,  and  parted  with  securities  Mactier  v.  Firth,  6  Wend.  (N.  Y.)  103. 

to  get  money  to  pay  for  the  land.  Letters  projjerly  directed  and  mailed 

On   February   7th,    before  receiving  arc  presumed  to  have  been  received ; 

any  notice  of  K.'s  withdrawal  of  his  and  the  same  is  true    of  telegram 

offer,  C.  wrote,  accepting  it  and  ar-  given  to  a  telegraph  company  for 

ranging  for  closing  the  transaction  at  transmission  if  properly  addressed, 

once.     Held,  that  there  was  a  con-  and  the  presumption  becomes  conclu- 

tract  binding    on   K.     Keinpner  v.  sive  when  not  denied.     Oregon  S.  S. 

Cohn,  47  Ark.  519.  Co.  v.  Otis,  100  N.  Y.  446. 

2Mactier  V.  Firth,  6  Wend.  (N.  Y.)  <*  Moore  v.  Pierson,    6  Iowa,    279; 

103;  Moore  v.  Pierson,  6  Iowa,  279.  Fitzhugh  v.  Jones,  6  Munf.  (Va.)  83. 


MEMORANDITM.  1 1  3 

"vvitli  some  variations,  however  slight,  it  cannot  be  regarded  as 
a  consummation  of  the  contract.'  The  proposition  must  be 
accepted  upon  the  terms  stated,  and  until  unqualifiedly  ac- 
cej)ted  it  remains  a  mere  offer;-  and,  on  the  other  hand,  if  an 
answer  to  an  offer  by  letter  proposes  modifications,  the  party 
making  the  offer  must  state  his  acceptance  of  the  modifica- 
tions if  he  proposes  to  hold  the  writer  of  the  answer.' 

It  is  further  to  be  observed  that,  where  an  offer  is  made  by 
letter,  asking  for,  or  where  the  sender,  from  the  nature  of  the 
business,  has  a  riglit  to  expect,  an  answer  by  return  mail,  the 
offer  can  only  endure  for  a  limited  time.  The  making  of  it, 
under  such  circumstances,  is  accompanied  by  an  implied  stipu- 
lation that  the  answer  shall  be  by  return  mail;  and,  if  that 
implied  stipulation  is  not  satisfied,  the  person  making  the  offer 
is  released  from  it.^  In  case  nothing  is  said  in  regard  to  ac- 
ceptance, and  there  is  nothing  in  tlic  circumstances  attending 

As  where  in  the  letter  containing  the  purchaser's  answer.    The  purchaser's 

offer  there  is  some  mention  of  debts  reply  stated  that  lie  would  take  the 

to  be  paid,  of  which  the  writer  says  land    on    the    terms    proposed,    and 

he  will  speak  in  another  letter,  the  would   have   the    lines    ascertained, 

payment  of  these  debts   not   being  tliough  it  went  on  to  express  a  wisli 

connected  with  the  price  to  be  paid  that  tlie  owners  agent  should  attend 

for  the  land  or  the  terms  of  payment :  to  tlie  settlement  of  part  of  the  bound- 

or  where  the  letter   of    acceptance  aries,   saying  nothing,   however,    of 

says  the  acceptor  expects  to  receive  waiving  his  acceptance  of  tlie  terras 

some  personal  property  about  which  he  had  proposed.     This  the  court  held 

there  is  some  dispute  with  the  land,  was  a  complete  contract  for  the  sale 

yet  gives  no  intimation  of  waiving  or  of   the  land.     Fitzhugh  v.  Jones,  6 

delaying,  for  tliis  reason,  his  accept-  Munf.  (Va.)  83. 

ance    of  terms   of    trade    proposed.  •  An  answer  to  an  offer  to  sell  real 
Moore  v.  Pierson.  6  Iowa,  379.     So,  estate,  which  fixes  a  different  place 
too.  where  a  person  disposed  to  pur-  for  the  delivery  of  the  deed  and  pay- 
chase  a  tract  of  land  wrote  to  the  ment  of  the  purchase  money,  is  not 
owner  inquiring  whether  it  was  for  an  acceptance.   Langellier  v.  Schafor, 
sale,  and  what  were  his  terms  b}'  the  3G  Minn.  3G1. 
acre,   stating  also  the    paj-ments  it  -  Maclay  v.  Harvey,  90  111.  5'25. 
would  be  convenient  for  him  to  make,  3  ^^uiidy  v.  Mattliews,  34  Hun  (N. 
one  of  which  was  to  pay  ^1,000  imme-  Y.),  74.     The  offer  to  accept  in  terms 
diately.     The  answer   to  this  letter  varying  from  tliose  proposed  amounts 
stated  the  price  the  owner  was  will-  to  a  rejection  of  the  offer  and  the 
ing  to  take,  but  that  he  wished  the  substitution  of  a  countei'-proposition 
purchaser  would  take  upon  himself  which  cannot  become  a  contract  un- 
the  responsibility  of  establisiiing  the  til  assented  to  by  first  proposer.    Fox 
lines.     He  also  acceded  to  the  olfercd  v.  Turner,  1  111.  App.  153. 
terms  of  payment,  and  retiuired  the  *  Maclay  v.  Harvey,  90  111.  525. 
8 


114  CONTKACT    OF    SALE. 

the  ofTer  to  denote  urgenc}',  it  rernains  open  for  a  reasonable 
time;  ^  and  parol  evidence  would,  in  such  case,  be  admissible  to 
show  what  would  be  a  reasonable  tinie.^ 

Further,  where  letters  are  relied  upon,  either  independently 
or  in  connection  with  other  writings,  they  must  upon  their  face 
sufficiently  demonstrate  their  reference  to  the  agreement  in 
question  without  the  aid  of  parol  proof,^  and  in  this  respect 
come  fully  within  the  rule  in  reference  to  collateral  papers. 
This  applies  with  particular  force  to  letters  written  by  the 
person  who  seeks  to  enforce  the  contract;  for,  not  being  signed 
by  the  person  sought  to  be  charged,  they  do  not  in  them- 
selves constitute  a  part  of  the  memorandum  required  by  the 
statute  of  frauds,  and  can  only  be  made  such  by  annexation 
and  reference. 

§  16.  Telegrams.  Telegraphic  correspondence  communi- 
cating an  offer  and  accepting  same,  when  acted  on,  forms  a 
contract  governing  the  acts  of  the  parties  under  the  stipula- 
tions of  the  telegrams;^  and  when  a  contract  has  been  thus 
made,  if  unambiguous  in  its  terms,  it  will  not  differ  in  legal 
effect  from  other  contracts  in  writing.^  There  must,  of  course, 
be  a  distinct  offer  on  the  one  hand  and  an  acceptance  of  it  on 
the  other,  showing  a  concurrence  of  the  minds  of  the  parties 
upon  all  the  terms  of  the  contract,  before  either  party  is  bound,* 
while  all  the  essential  terms  must  appear  either  by  the  tele- 
grams or  other  papers  which  can  be  directly  connected  with 
them.'  A  telegraphic  message,  written  and  dul}''  signed  and 
delivered  to  the  telegraph  company  for  transmission,  is  a  suffi- 
cient compliance  with  the  statute  of  frauds  and  binds  the 
sender.** 


1  Wilson  V.    Clements,  3  Mass.  1 ;  'A  telegram  from  a  principal,  say- 
Martin  V.  Black.  21  Ala.  721.  ing  he  would  take  certain  property 
-  But  not  to  show  that  at  the  time  for  the  purchase  of  which  his  agent 
of  making  the  proposition  it  was  un-  had  negotiated,  was  held  not  a  suffi- 
derstood  that  it  should  remain  open  cient  memorandum    to    satisfy  the 
for  a  specific  time.     Stone  v.  Har-  statute  of  frauds  where  it  did  not  ex- 
mon,  31  Minn.  512.  press  the  terms  of  the  contract,  but 
3  Beck  with  v.  Talbot,  95  U.  S.  289.  these  would  have  to  be  ascertained 
<  Dable  v.  Batts,  38  Tex.  312.  from  the  oral  negotiations  between 
swells  V.  R.  R.  Co.  30  Wis.  605.  the  agent  and  the  vendor.     McElroy 
6  Deshon  v.  Fosdick,  1  Woods  (C.  v.  Buck,  35  I\Iich.  434. 
Ct.),  286.  a  Hav.ley  v.  Whipple,  48  N.  H.  487. 


MEMORANDUM.  115 

§17.  Delivery.  The  general  principles  which  govern  the 
operation  of  written  instruments  creating  obligations  or  im- 
posing duties  and  burdens  apply  with  equal  force  to  contracts 
for  the  sale  or  conveyance  of  land.  The  delivery  of  a  written 
contract  is  indispensable  to  its  binding  efFect,  and  proof  of 
same  is  as  necessary  as  of  execution.  Nor  is  a  delivery  con- 
clusively proved  by  merely  showing  the  placing  of  the  paper 
by  one  of  the  alleged  contracting  parties  in  the  hands  of  the 
other.  Delivery  is  in  all  cases  a  question  of  intent,  and  de- 
pends on  whether  tl.e  parties  at  the  time  meant  it  to  be  a 
delivery  to  take  elfect  presently.'  This  subject  is  very  fully 
considered  in  that  ])art  of  the  work  which  treats  of  the  con- 
veyance, and  to  this  the  reader  is  referred. 

'  Jordan  V.  Davis,  108111.  ;J3G;  Cocks  with  a  clerk,  together  with  a  check 
V.  Barker,  41)  N.  Y.  10 1.  Parties  ne-  for  first  payment,  with  directions  to 
gotiated  for  the  purcliase  by  defend-  deliver  them  if  the  counsel  approved 
ant  and  sale  by  plaintiff  of  certain  them.  Plaintiff  subsequently  ob- 
premises.  They  agreed  upon  the  tained  one  of  the  duplicates  from  the 
price,  and  a  contract  was  drawn  and  clerk.  Upon  return  of  counsel  he 
signed  in  duplicate,  to  which  P.  at-  disapproved  the  title,  and  rejected  it 
tached  his  name  as  a  witness.  While  as  defective.  In  an  action  for  specific 
the  papers  lay  upon  the  table  defend-  performan'^o,  Jteld  that  the  facts  jus- 
ant  inquired  as  to  the  papers  in  re-  tified  a  finding  that  no  contract  was 
spect  to  title.  Plaintiff  replied  that  concluded;  that  all  the  acts  of  the 
he  had  none.  Defendant  then  sug-  parties  were  to  be  regarded  as  parts 
gested  that,  before  proceeding  fur-  of  one  transaction,  which  was  never 
ther,  the  matter  should  be  submitted  consummated,  and  that  there  had 
to  his  counsel  for  approval,  which  been  no  delivery.  Dietz  v.  Farish,  79 
was  assented  to  by  plaintiff.  Counsel  N.  Y.  520. 
being  absent,  the  contracts  were  left 


IIG 


CONTliACT    OF    SALE. 


CHAPTER  IV. 


CONSTRUCTION  OF  LAND  CONTRACTS. 


7. 
8. 
9. 

10. 

11. 
12. 

13. 

14. 
15. 
16. 


General  principles. 

When  construction  is  for  the 
court. 

When  for  the  jury. 

Intention  of  the  parties. 

Construction  deduced  from 
acts. 

When  construction  should  fa- 
vor either  party. 

Entire  and  separable  contracts. 

Implication. 

Mutual  and  dependent  under- 
takings. 

Precedent  and  contempora- 
neous acts. 

Admission  of  parol  evidence. 

Continued— Collateral  matters 
and  conditions. 

Surrounding  circumstances 
and  pre-existing  relations. 

Usage  and  custom. 

Ambiguities. 

Technical  phrases. 


§  17.  Contemporaneous  writings. 

18.  Continued  —  When      variant 

from  each  other. 

19.  Unintelligible  expressions. 

20.  Printed  blanks. 

21.  Interlineations  —  Erasures. 

22.  Proposals  and  offers. 

23.  Acceptance. 

24.  Operation  and  effect. 

25.  Recitals. 

26.  Contracts  for  repurchase. 

27.  Bond  for  conveyance. 

28.  The  description, 

29.  Continued  —  Unlocated  land. 

30.  Continued  —  History  of  title. 

31.  Description  by  designation. 

32.  The  medium  of  payment. 

33.  Conditions  in  avoidance. 

34.  Time  of  performance. 

35.  Computation  of  time. 

36.  Assignment  of  contract  for  se- 

curity. 


§  1.  General  principles.  The  obligation  of  a  contract  is 
the  legal  duty  of  performing  it  according  to  its  terms.  There 
can  be  no  legal  duty  without  a  remedy  or  means  of  enforcing 
it;  for  without  such  remedy  a  contract  is  a  mere  imperfect  ob- 
ligation, depending  for  its  performance  upon  the  will  of  him 
from  whom  performance  is  expected.  Parties,  therefore,  who 
enter  into  contracts  must  be  considered  as  looking  to  the  mu- 
nicipal law  for  a  remedy  to  enforce  them;  and  this  law,  thus  in 
the  legal  contemplation  of  the  parties,  enters  into  and  forms  a 
part  of  the  obligation.^     It  may  be  further  stated  as  a  f unda- 


1  Lessley  v.  Phipps,  49  Miss.  790.  with  reference  to  that  statute  whicli 

Where  there  is  a  conflict  of  applica-  is  most  favorable  to  its  validity  and 

torj  laws,  the  parties  to  an  agree-  performance.    Talbot  v.  Trans.   Co. 

ment  are  presumed  to  have  made  it  41  Iowa,  247. 


CONSTRUCTION  OF  LAND  CONTKACTS.  117 

mental  proposition  in  the  iijjplication  of  the  principles  last 
enunciated,  that  all  matters  bearing  upon  the  execution,  inter- 
pretation and  validity  of  a  contract  are  to  bo  determined  by 
the  law  of  the  place  where  it  is  made;  that  all  matters  con- 
nected with  its  performance  are  regulated  by  the  law  prevail- 
ing at  the  place  of  such  performance;  and  that  all  matters 
respecting  the  remedies  incident  to  it  depend  upon  the  law  of 
the  place  where  the  suit  is  brought.' 

It  is  a  further  proposition  that  all  contracts  must  receive  a 
reasonable  interpretation  according  to  the  intention  of  the 
parties  at  the  time  of  executing  them,  if  that  intention  can  be 
gathered  from  the  language  which  they  have  employed,'  and 
that  such  intention  is  in  all  cases  the  controlling  principle,  re- 
(piiring  the  adoption  of  such  construction  as  shall  carry  the  same 
into  effect  whenever  this  can  be  done  consistently  with  the 
established  rules  of  law."  The  acts  to  be  performed  under  the 
contract  and  the  manner  of  performance  may  also  be  consid- 
ered,^ as  well  as  the  acts  leading  to  or  done  at  the  time  of  exe- 
cution or  with  reference  thereto;  and  those  facts  in  view  of 
the  existence  of  which  the  contract  was  entered  into  may  be 
considered  in  construing  a  clause  thereof  the  meaning  of  which 
is  obscure,^  while  the  whole  contract  should  always  be  consid- 

iScudder  v.  Union  Nat.  Bank,  91  Morison,    2  Met.    (Mass.)   381.     Con- 

U.   S.   406;  Morgan  v.  R.  R.    Co.  3  tracts  in   relation   to  land   must   be 

Woods  (C.  Ct.),  244.  Generally  a  con-  made  in  conformity  to  the  local  laws, 

tract  which  is  valid  in  the  state  in  And  such  local  laws  must  also  be  re- 

which  it  was    made  should  be  en-  sorted  to  for  the  purpose  of  deter- 

forced  in  anotlier  state,  unless  it  is  mining  what  is  to  be  considered  real 

clearly   contrary  to  good  morals  or  property.      Chapman  v.    Robertson, 

repugnant  to  the  policy  or  positive  G  Paige  (N.  Y.),  (327. 

institutions  of  that  state.  Phinney  v.  ^Crabtree  v.  Hagenbaugh,  25  111. 

Baldwin,  16111. 108.  Where  a  contract  233;  Goosey  v.  Goosey,  48  Miss.  210; 

made  in  one  place  contemplates  the  Barlow  v.  Scott,  24  N.  Y.  40. 

execution  of  deeds  or  other  contracts,  ^  Atwood  v.  Cobb,  16  Pick.  (Mass.) 

niakiug  payments  or  doing  other  legal  227;  Hurley  v.  Brown,  9H  Mass.  545; 

acts  in  another,  the  law  of  the  place  Ives  v.  Hazzard,  4  R.  I.  29;  Stout  v. 

where  the  acts  are  to   be  done  will  Whitney,  12  III.  218;    Coey   v.  Leii- 

govcrn  the  contract:  and  the  obliga-  man,  79  III.  173. 

tion  of  such  contract  will  bind  the  ^  People    v.    Gosper,   3    Neb.    285; 

contracting  party  to  do  all  such  legal  Dunn  v.  Moore,  16  111.  151 ;  Pollard 

acts  as  are  necessary  according    to  v.  Maddox,  28  Ala.  321 ;   Sumner  v. 

the  law  of  the  place  where  they  are  Williams,  8  Mass.  162. 

to  operate,  so  that  they  may  have  ^stapenhorst    v.   Wolff.  35   N.  Y. 

their  full   legal  effect.     Carnegie  v.  Sup.  Ct.  25;  Parmelee  v.  Hauibleton, 


118  CONTRACT   OF   SALE. 

cred  in  determining  the  meaning  of  any  of  its  parts. ^  But 
where  the  contract  bears  such  inherent  evidence  of  its  true 
meaning  that  it  carries  a  clear  legal  conviction,  evidence  of 
the  intention  of  the  parties  as  furnished  by  other  sources  or 
of  surrounding  circumstances  is  properlv  cxcUided.^ 

A  contract  should  be  construed  so  as  not  to  give  either  party 
an  unfair  or  unreasonable  advantage  over  the  other,  unless 
such  was  the  manifest  intention  of  the  parties  at  the  time  it 
was  made;  for  it  is  one  of  the  cherished  objects  of  the  law  to 
maintain  a  reciprocity  between  parties  to  a  contract  whenever 
it  can  be  done  without  doin":  violence  to  the  language  used.^ 

To  the  end  that  effect  may  be  given  to  the  intent  of  the 
parties  in  the  interpretation  of  their  contracts,  courts  may 
consider  the  circumstances  of  their  situation  and  the  subject- 
matter  of  their  meeting,*  as  well  as  any  practical  interpreta- 
tion of  the  agreement  which  they  may  have  given  to  it  by 
their  acts;^  and  where  a  written  contract  has  been  fully  per- 
formed within  its  apparent  intent  and  reasonable  requirements, 
and  to  the  evident  satisfaction  of  the  parties  at  the  time,  and 
it  is  not  made  to  appear  that  there  was  any  mutual  error  aris- 
ing from  mistake  of  fact,  or  any  practicing  of  fraud,  courts 
should  not  interfere.'' 

§  2.  Wheu  construction  is  for  the  court.  It  is  a  general 
and  well-established  rule  that,  where  the  terms  of  a  contract 
are  undisputed,  the  question  as  to  the  nature,  extent  and  effect 
thereof  and  of  the  interests  of  the  parties  thereto  is  to  be  de- 
termined from  the  contract,  and  is  a  question  of  law  for  the 
court,  whose  duty  it  is  in  every  instance,  where  meaning  or 
effect  is  called  in  question,  to  declare  its  legal  interpretation.^ 

24IU.  605;  Strong  V.  Gregory,  19  Ala.  Ann.    196;    Chicago    v.    Sheldon,  9 

146.  Wall.  (U.  S.)  50. 

1  People  V.  Gosper,  3  Neb.  285;  eLathers  v.  Keogh,  109  N.  Y.  583; 
Goosey  v.  Goosey,  48  Miss.  210.  Casey  v.  Pennoyer,  6  La.  Ann.  766; 

2  Morss  V.  Salisbury,  48  N.  Y.  636 ;  Farley  v.  Pettes,  5  Mo.  App.  262.  The 
Cosy  V.  Lehman,  79  111.  173;  Watrous  practical  construction  in  such  cases 
V.  McKie,  54  Tex.  05.  is  held  to  control  as  being  in  the  nat- 

3  Gale  V.  Dean,  20  III.  320.  ureof  an  estoppel.     Citizens' Ins.  Co. 
4Convvell  v.  Puraphrey,  9  Ind.  135;    v.  Doll,  35  Md.  89. 

Robinson  v.  Fiske,  25  Me.  401;  Lacey       ^Williams  v.  Waters,  36  Ga.  454; 

V.  Green,  84  Pa.  St.  514;  Pollard  v.    Kidd  v.  Cromwell,  17  Ala.  648;  An- 

Maddox.  28  Ala.  321.  drews  v.  Telford,  37  Iowa,  314;  Fowle 

5  Williamson  v.   McHatton,  16  La.    v.   Biglow,   10  Mass.  379;  McKenzie 


COXSTKUCTION    OF    LAND    CONTUACTS.  1  1 'J 

The  rule  is  the  same  whatever  be  the  character  of  the  instru- 
ment,' and  has  been  held  to  extend  even  to  the  correct  readins: 
of  words  as  well  as  to  their  meanino:  and  le^al  effect.-  It 
seems,  however,  that  although  it  is  the  s|)ccial  province 
of  the  court  to  construe  and  determine  the  nature  and  char- 
acter of  documentary  evidence,  wiiich  should  not  for  tiiis 
jjurpose  be  submitted  to  the  jury,'  yet  if  it  is  so  submitted, 
and  tiie  jury  construe  it  aright,  the  verdict  will  be  allowed 
to  stand  and  the  submission  will  furnish  no  ground  for  excep- 
tion.^ 

§  3.  AVIien  for  the  jury.  AVliile  it  is  true,  as  a  general  rule, 
that  the  interpretation  of  written  instruments  properly  belongs 
to  the  court,  whose  province  it  is  to  construe  contracts,  and 
not  to  the  jury,  yet  there  are  many  cases  in  wliich,  from  the 
different  senses  of  the  words  used,  or  their  obscure  and  inde- 
terminate reference  to  unexplained  circumstances,  the  interpre- 
tation of  the  language  may  be  left  to  the  consideration  of  the 
jury  for  the  purpose  of  carrying  into  effect  the  real  intention 
of  the  parties.'  Thus,  where  the  instrument  contains  terms  or 
words  used  in  a  sense  peculiar  to  some  art  or  business,  the  de- 
termination of  the  sense  in  which  such  terms  or  words  are 
emplo3'ed  may  be  properly  left  to  the  jury."  In  like  manner, 
if  the  writing  is  obscure  or  ambiguous,  when  such  obscurity 
or  ambiguity  arises  from  unfamiliar  words  or  terms,  or  from 
indistinct  chirography,  or  erasures,  and,  in  some  instances, 
where  the  meaning  of  the  contract  depends  upon  facts  (diunde, 
in  connection  with  the  written  language,  it  should  go  to  the 
jury  to  ascertain  and  determine  the  intention." 

V.  Sykes,  47  Mich.  294 ;  Groat  v.  Gile,  *  Martineau  v.  Steele,  14  Wis.  272. 

51  N.  Y.  431.  ^ Brown  v.  McGrau,  14  Pet.  (U.  S.) 

iLowry  V.  Me^ee,  52Ind.  107;  Nash  493;  Jennings  v.  Sherwood,  8  Conn. 

V.    Drisco,    51  Me.   417;  Seaward  v.  122;  Bank  v.  Dana,  79  N.  Y.  108. 

Malatte,  loCal.  304;  Montagv.  Lynn,  «Goddard  v.  Foster,  17  Wall.  (U. 

23  111.  551.  S.)  123:  Williams  v.  Woods,  16  Md. 

-  Lapeer  Ins.  Co.  v.  Doyle,  30  Mich.  220;  Eaton  v.  Smith,  20  Pick.  (Mass.) 

159.     But  this  is  hardly  in  consonance  156;  Prather   v.    Ross,    17   Ind.   495; 

with  the  volume  of  autliority,  and  is  Sellars   v.    Jolinson,    05   N.    C    104; 

rather  an  invasion  of  the  province  of  McAvoy  v.  Lon<;-,  13  III.  147. 

the  jury.  '  Holland  v.  Lone,  57  Ga.  36;  Paine 

3  Warner  v.   Miltenberger,   21  Md.  v.    Kingold,    43   Mich.    341:  Bank  v. 

264;  Woodman  v.  Chesley,  39  Me.  45;  Dana,  79  N.  Y.  108. 
Morse  v.  AVeymouth,  28  Vt.  825. 


120  CONTRACT   OF   SALE. 

§  4.  Intention  of  the  parties.  The  primary  inquiry  in  the 
interpretation  of  a  contract  is  directed  to  the  intention  of  the 
parties  thereto  at  the  time  of  its  execution;  and  the  cardinal 
rule  applicable  to  the  same  is  that  such  intention,  so  far  as  it  can 
be  ascertained,  must  govern.^  Where  the  contract  is  clear  and 
unambiguous  in  its  terms,  it  is  the  best  evidence  of  such  inten- 
tion; and  even  though  the  parties  may  have  failed  to  express 
their  real  intention  there  is  no  room  for  construction,  and  the 
legal  effect  of  the  agreement  must  be  enforced  according  to  the 
plain  import  of  the  language  employed.^  If  the  language  is 
ambiguous  courts  uniformly  endeavor  to  ascertain  the  true 
meaning,  and  to  adopt  such  a  construction  as  will  give  effect  to 
the  provisions  which  carry  out  the  evident  intent.^  Facts  ex- 
isting at  the  time  of  the  making  of  an  obscurely-worded  con- 
tract are  available  to  explain  the  language  used  ;*  and  courts 
may  look  to  the  circumstances  attending  the  contracting  par- 
ties, as  well  as  to  the  terms  of  the  contract  itself,  to  learn  the 
purposes  and  objects  contemplated  thereby,  as  aids  to  a  correct 
understanding  of  a  particular  part,  supposed  to  be  equivocal  or 
doubtful;  5  but  the  verbal  language  employed  by  the  parties  in 
making  the  contract  cannot  be  resorted  to,  nor  will  their  under- 
standing as  to  the  conditions  and  effect  of  their  written  con- 
tract be  received  to  affect  its  construction/'  The  construction 
of  a  contract  does  not  depend  upon  what  either  part}''  thought, 
but  upon  what  both  have  agreed  J 

It  has  been  held,  however,  that,  while  the  understanding  of 
the  parties  as  to  the  conditions  and  effect  of  their  contract 
cannot  be  received  to  affect  its  construction,  their  understand- 

iHigginsv.  Wasgatt,  34  Me.  305;  Walker  v.  Tucker.  70  111.  527;  Steele 

Belmont  v.    Cowan,    23  N.    Y.  438;  v.  Branch,  40  Cal.  3. 

Field   V.   Leiter,  118  111.  17;  Bent  v.  ^  Dent  v.  Nortli  American,  etc.  Co. 

Rogers,  137  Mass.  192;  Waterman  v.  49  N.  Y.  390;  Strong  v.  Gregory,  19 

Andrews,    14  R.    I.    589;    Bryan  v.  Ala.  146;  Robinson  v.  Fiske,  25  Me. 

Bradley,  16  Conn.  474;  Pike  v.  Mon-  401;  Lacey  v.  Green,  84  Pa.  St.  514. 

roe,  36  Me.   309 ;  Mills  v.  Catlin,  23  5  Pratt  v.   Canton   Cotton  Co.    51 

Vt.  98.  Miss.  470 ;  Lacy  v.  Green,  84  Pa.  St. 

2  Walker  v.    Tucker,    70  111.    537;  514;  Kuecken  v.  Valtz,  110  111.  265. 

Babb  V.  Bancroft,  13  Kan.  123  ;  Bran-  6  Dent  v.  North  American,  etc.  Co. 

nan  v.  Messick,  10  Cal.   95;  Jackson  49  N.  Y.  390;  Haddock  v.  Woods,  46 

V.  Blodgett,  16  Johns.  (N.  Y.)  172;  Iowa,   433;   Watrous   v.   McKie,    54 

Green  v.  Day,  34  Iowa,  328.  Tex.  65. 

^People   V.    Gosper,   3   Neb.    285;  '  Brunhila  v.   Freeman,  77  N.  C. 


CONSTRUCTION    OF    LAND   CONTRACTS.  121 

ing  of  the  nuaniiii,''  of  terms  employed  in  it  may  be  shown;' 
and  a  iiarty  to  the  same  will  usually  be  held  to  that  meaning 
which  Jie  knew  the  other  party  supposed  the  words  to  bear,  if 
this  can  be  done  without  makin";  a  new  contract,'- 

The  intention  is  further  to  be  ascertained  rather  from  the 
order  of  time  in  which  the  acts  are  to  be  done  Ihan  from  the 
structure  of  the  instrument  or  the  arrani-emcnt  of  the  cove- 
nants.-' 

§  5.  Coiistnu'tioii  (iHluced  from  acts.  AVhere  the  rule  still 
holds  that,  where  parties  reduce  their  contracts  to  writing,  they 
must  be  governed  by  its  provisions,  and  their  intention  must  be 
gathered  from  its  terms;  yet  this  applies  in  its  strict  sense  only 
where  the  intention  is  apparent.  It  will  frequently  happen, 
through  inadvertence  or  other  reason,  that  the  langua'^^e  em- 
ployed  does  not  fully  disclose  the  true  intent,  and  resort  is  nec- 
essarih'  had  to  acts  to  supplement  the  written  words.  Hence 
the  construction  given  to  a  contract  by  the  parties  themselves, 
as  shown  by  their  acts  under  it,  may  be  resorted  to  as  a  means 
of  determining  the  true  intention  which  they  had  in  view  in 
entering  into  the  same.'  As,  although  an  agreement  for  convey- 
ance of  '•  ten  acres  out  of  one  hundred  and  sixty  acres"  might 
be  void  for  uncertainty,  yet  where  the  vendee  has  gone  into 
possession  and  the  parties  have  given  a  construction  to  their 
contract  by  the  manner  in  which  they  have  executed  it,  the 

128;    Clark    v.    Lillie,    39   Vt.    405;  appointed  for  the  payment  of  money 

Watrous  V.  McKie,  54  Tex.  65.  or  part  of  it,  or  for  doing  any  other 

'  Tlius,  evidence  may  be  received  act,  and  the  day  is  to  happen  or  may 

tiiat  by  "  current  funds  "  the  parties  liappen  before  the  thing  wliicli  is  tlie 

meant  money.    Haddock  v.  Woods,  consideration  of  tlie  money  or  other 

46  Iowa,   433;  and    see    Barlow  v.  act   is   to  be   performed,    an  action 

Scott,  24  N.  Y.  40.  may  be  brouglit  for  the  money,  or 

2  CUnton  County  v,  Ramsey,  20  111.  for  not  doing  such  other  act,  before 
App.  577;  Wells  v.  Carpenter,  65  111.  performance;  for  it  appears  that  the 
447;  Barlow  y.  Scott,  24  N.  Y.  40;  party  relied  upon  his  remedy,  and 
(lunnison  v.  Bancroft,  11  Vt.  490.  did  not  intend  to  make  the  perfonn- 

3  As  when  a  day  is  fixed  for  the  ance  a  condition  ]>recedent.  Siicern 
payment  of  money  and  the  day  is  to  v.  Moses,  84  111.  448. 

hai)pen  on  the  performance  of  that  ^  Leavers  v.  Cleary,  75  111.  340 ;  Par- 
which  is  the  consideration  of  it,  no  melee  v.  Ilambleton,  24  111.  C05; 
action  can  be  maintained  before  per-  Nickerson  v.  R,  R.  Co.  17  Fed.  Rep. 
formance.  Dunn  v.  Moore,  16  111.  408;  Hutchins  v.  Dixon,  11  Md.  29; 
151.     On  the  other  hand,  if  a  day  be   Jakeway  v.  Barrett,  38  Vt.  316. 


123  CONTIiACT    OF    SALE. 

objection  of  uncertainty  in  description  would  be  removed ;  ^  and 
the  fact  tliat  the  parties  have  adopted  a  particular  construction, 
and  have  acted  upon  it,  should  lead  a  court  without  hesitation  to 
adopt  that  construction  as  the  proper  one.- 

§  6.  IVlien  construction  should  favor  either  party.  As 
previously  remarked,  a  contract  should  be  so  construed  as 
not  to  give  either  party  an  unfair  or  unreasonable  advantage 
over  the  other,  the  object  of  the  law  being  to  maintain  as  far 
as  possible  an  entire  reciprocity  between  the  parties.  But  if  a 
contract  contains  ambiguous  words,  or  words  of  doubtful  con- 
struction, they  should,  as  a  rule,  be  construed  most  strongly 
against  the  party  Avho  executed  the  same,  as  the  other  party  is 
not  presumed  to  have  chosen  the  expression  of  doubtful  mean- 
ing.^ For  this  reason,  where  the  language  of  a  deed  permits  two 
constructions,  that  one  should  be  adopted  which  is  least  favor- 
able to  the  grantor;*  and  the  same  rule  would  apply  to  his 
contracts  for  conveyance. 

In  every  instance  where  a  party  takes  an  agreement  pre- 
pared by  another,  and  upon  its  faith  incurs  obligations  or  parts 
with  his  property,  he  should  have  a  construction  given  to  the 
instrument  most  favorable  to  himself.^  This  rule,  however,  is 
one  of  last  resort,  and  should  be  applied  only  where  the  instru- 
ment is  couched  in  such  language  as  to  admit  equally  of  two 
or  more  interpretations.^ 

§  7.  Entire  and  separable  contracts.  It  does  not  appear 
that  an}'"  precise  rule  can  be  laid  down  for  the  solution  of  the 
question  whether  a  contract  is  entire  or  separable,  but  it  must 
be  solved  by  considering  both  the  'language  and  the  subject- 
matter  of  the  contract.  When  the  price  is  expressly  appor- 
tioned by  the  contract,  or  the  apportionment  may  be  implied 

1  Purinton  v.  E.  R.  Co.  46  111.  297.  «  Hager  v.  Spect,  52  Cal.  579 ;  Mills 
^Nickerson  v.    R.   R.  Co.   17  Fed.  v.  Catlin,  22  Vt.  98;  Winslow  v.  Pat- 
Rep.   408;  and  see  Chicago  v.  Sliel-  ten,  34  Me.  25. 

don,  9  Wall.  (U.  S.)  50;  Frigerio  v.  SNoonan  v.  Bradley,  9  Wall.  (U.  S.) 

StlUman,  17  La.  Ann.  23.  394 ;    Livingstone  v.   Arrington,   28 

■*  Livingstone  V.  Arrington,  28  Ala.  Ala.   424;   Hoover  v.   Miller,   6  La. 

424;  Noonan  V.  Bradley,  9  Wall.  (U.  Ann.   204;    Barney  v.    Newcomb,    9 

S.)  394;  Massie  v.  Beford.  68  111.  290;  Cush.  (Mass.)  46. 

Richardson  v.  People,  85  111.  495;  Gil-  «Falley  v.  Giles,  29  Ind.  114. 
bert  V.  James,  86  N.  C.  244. 


CONSTUUCTIOX    OF    LAND    CONTIJACTS.  123 

b}'  law  to  each  item,  the  contract  will  geuerall}'  bo  held  to  be 
severable.^  Usually  the  question  is  regarded  as  a  matter  of 
intention,  to  be  discovered  in  each  case  by  a  view  of  the  lan- 
guage employed  and  the  circumstances  attending  the  subject- 
raatter.- 

The  consideration  to  be  paid,  and  not  the  subject  or  matter 
to  be  performed,  is  usually  the  test  for  determining  whether  a 
contract  is  entire  or  severable;  as,  if  the  conli-act  consists  of 
several  distinct  items  founded  on  a  consideration  which  is  ap- 
])ortioned  to  each  item,  it  is  severable.  On  the  other  hand,  if 
the  contract  is  for  the  sale  of  several  distinct  things,  as  for  the 
sale  of  a  town-lot  and  certain  personal  property,  but  all  for 
one  consideration,  the  contract  is  entire  and  not  divisible,  ex- 
cept by  the  consent  of  both  parties  thereto  and  the  making  of 
a  new  contract,* 

So,  also,  a  joint  contract  b}'  two  persons  for  the  purchase  of 
land  is  an  entirety,  and  cannot  be  repudiated  by  one  without 
the  assent  of  the  other/ 

§  8.  Implication.  While  necessary  implication  is  as  much 
a  part  of  a  written  instrument  as  if  that  which  is  so  implied 
was  plainly  expressed,  yet  omissions  and  defects  cannot  be 
supplied  by  virtue  of  that  rule,  unless  the  implication  results 
from  the  language  employed  in  the  instrument,  or  is  indispen- 
sable to  carry  the  intention  of  the  parties  into  effect.^ 

§  9.  Mutual  and  dependent  nndertakings.  Undertakings 
are  said  to  be  mutual  and  dependent  when  each  forms  the 
consideration  for  the  other;  as,  where  a  i)arty  purchases  land 
and  gives  notes  for  the  ])urchase  mone\',  and  the  vendor  at 
the  same  time  agrees  to  convey  the  land  by  deed  to  the  pur- 
chaser upon  the  payment  of  all  the  notes,  the  execution  ami 
delivery  of  a  deed  of  conveyance  by  the  vendor  and  the  i)ay- 
ment  of  the  last  note  are  mutual  and  dependent  acts.     "Where 


^Moorev.  Bonnet,  40  Cal.  251;  Oil  face  to  be  a  divisible  contract.  Graver 

Co.  V.  Brewer,  GO  Pa.  St.  351.  v.  Scott,  80  Ta.  St.  88. 

2  Southwell  V.  Beezle}-,  5  Oreg.  458.  "*  Scheland   v.   Erpelding,    C  Oreg. 

A  contract  for  the  sale  of  a  parcel  of  258. 

land,  "  also  a  tract  of  coal  property,"'  *  Merrimau   v.   Norman,  9   Heisk. 

the  "coal  to  be  paid  for  at  tlie  rate  (Tenn.^  2G9. 

of  half  a  cent  a  bushel,''  Jicld  on  its  ''Hudson  Canal  Co.  v.  Coal  Co.  8 

Wall.  (U.  S.)  27G. 


124  CONTUACT    OF    SALE. 

acts  are  mutual  and  dependent  neither  party  can  require  the 
other  to  proceed  until  he  has  performed  or  offered  to  perform 
his  ])art  of  the  contract;  nor  is  either  party  in  default  so  as  to 
release  the  other  from  his  part  of  the  agreement.^  On  the 
other  hand,  where  the  covenants  or  undertakings  are  inde- 
pendent of  each  other,  one  party  may  maintain  an  action 
against  the  other  without  averring  a  performance  on  his  part.' 

Covenants  and  undertakings  are  construed  to  be  dependent 
or  independent,  according  to  the  intention  of  the  parties,  if 
that  intention  can  be  discovered;  but,  unless  it  is  clearly  made 
to  appear  that  the  intention  was  that  the  covenants  sljould  be 
independent,  they  will  be  deemed  dependent.'  The  intention 
of  the  parties  as  expressed  by  the  language  of  the  contract,  and 
not  technical  and  artificial  rules,  are  to  govern  in  deciding 
whether  stipulations  are  conditional  or  independent  or  mutu- 
ally dependent;  while  the  nature  of  the  transactions,  and  the 
order  of  time  in  which  they  are  to  be  performed,  may  further 
be  considered  in  arriving  at  a  determination.^  In  a  contract 
relative  to  the  same  subject-matter,  some  stipulations  may  be 
independent,  and  others  dependent  and  mutually  conditional.' 

g  10.  Precedent  and  contemporaneons  acts.  Even  in  the 
case  of  mutual  and  dependent  undertakings  there  must  of  ne- 
cessity be  some  order  of  precedence,  although  it  may  in  many 
cases  be  hardly  appreciable.  Thus,  the  payment  of  the  pur- 
chase money  and  the  deliver}'  of  the  deed  are,  in  most  cases, 

1  Campbell  v.  Gittings,  19  Ohio,  317 ;  *  Howland  v.  Leach,  11  Pick.  (Mass.) 
Jones  V.  Marsh,  23  Vt.  144;  Swan  v.  151;  Hopkins  v.  Young,  11  Mass.  302. 
Druiy,  22  Pick.  (Mass.)  48o;  Bour-  5  A  contract  was  made  to  convey 
land  V.  Sickles,  2G  111.  497;  Sheern  v.  certain  land,  a  pai-t  of  the  consider- 
Moses,  84  111.  448;  Smith  v.  Lewis,  ation  of  which  was  to  be  paid,  in  ten 
26  Conn.  110;  Howe  v.  Huntington,  days  and  a  "half  of  the  remainder 
15  Me.  350.  Where  agreements  were  in  twelve  months,  and  the  other  half 
reciprocally  entered  into  for  ex-  in  two  years,  with  interest  annually, 
change  of  lands,  one  conveyance  and  the  deed  to  be  executed  at  the 
being  the  consideration  of  the  other,  completing  the  last  payment."  It 
and  there  was  no  time  fixed  for  mak-  was  held  that  the  agreement  to  pay 
ing  them,  the  agreements  were  held  the  two  first  instalments  was  inde- 
to  be  mutual  and  dejiendent.  Couch  pendent,  but  that  the  agreement  of 
V.  Ingersoll,  2  Pick.  (Mass.)  292.  the  one  party  to  pay  the  last  instal- 

2  Prairie  Farmer  Co.  v.  Taylor,  69  ment,  and  of  the  other  to  execute  and 
111.  440.  deliver  a  deed,  were  mutually  depend- 

3  Hamilton  v.  Thrall,  7  Neb.  210.  ent  and  conditional.    Kane  v.  Hood, 

13  Pick.  (Mass.)  281. 


CO>fSTRUCTI(JN    OF    L\Sl)   CONTRACTS.  125 

and  in  the  absence  of  special  stipulations,  to  be  deemed  mut- 
ual and  concurrent  acts;  \'et  a  vendee  is  not  entitled  to  a  deed, 
unless  the  contract  otherwise  provide,  until  he  has  made  pay- 
ment,' and  if  the  pa3nient  of  any  ))art  of  the  purchase  money 
is  deferred  the  giving  of  the  deed  should  precede  the  delivery  of 
a  mortgage  to  secure  the  deferred  payments.-  Practically 
these  acts  may  be  contemporaneous;  but  the  rights  and  liabil- 
ities of  the  parties,  whether  for  specific  enforcement  or  rescis- 
sion, are  usually  fixed  with  regard  to  this  order  of  precedence. 
^'11.  Admission  of  parol  evidence.  When  parties  have 
deliberately  put  their  engagements  in  writing  in  such  terms 
as  to  import  a  legal  obligation,  without  any  uncertainty  as  to 
the  object  or  extent  of  such  engagement,  it  is  conclusively  i^re- 
sumed  that  the  whole  agreement  of  the  parties,  and  the  extent 
and  manner  of  their  undertaking,  was  reduced  to  writing;  and 
all  antecedent  verbal  propositions  and  contemporaneous  agree- 
ments are  considered  as  merged  in  the  writing,  from  which 
alone  is  to  be  determined  the  tei'ms  and  conditions  of  the  con- 
tract and  tlie  liability  of  the  parties.^  Parol  evidence  is  inad- 
missible, therefore,  to  alter,  vary  or  control  such  a  contract, 
or  to  annex  thereto  a  condition  or  defeasance  not  apjiearing 
on  the  contract  itself;^  and  this  rule,  sustained  and  established 
by  innumerable  decisions,  on  account  of  its  importance  is 
never  to  be  relaxed  in  any  degree.  The  rule  itself  is  founded 
on  the  long  experience  that  Avritten  evidence  is  so  much  more 
certain  and  accurate  than  that  which  rests  in  fleeting  memory 
only  that  it  would  be  unsafe,  when  parties  have  expressed  the 
terms  of  their  contract  in  writing,  to  admit  weaker  evidence 
to  control  and  vary  the  stronger,  and  to  show  that  parties  in- 
tended a  different  contract  from  that  expressed  in  the  writing 

1  Terry  v.  George,  37  l^Iiss.  539;  Mott  v.  Riclitmeyer,  57  X.  Y.  -10; 
Headley  v.  Shaw,  39  111.  354.  Naumburg  v.   Young,   44  N.    J.  L. 

2  Papin  V.  Goodrich,  103  111.  86.  331;  JIarlin   v.  Cole,   104  U.  S.   30; 

3  Merchants'  Ins.  Co.  v.  Morrison,  McDonald  v.  Elfes,  61  Ind.  27!» ; 
62  111.  242;  Weaver  v.  Fries,  85  111.  Richardson  v.  Johnson,  41  Wis.  100. 
356 ;  Walterhouse  v,  Garrard,  70  Ind.  And  if,  in  fact,  some  of  the  condiliuii.s 
400;  Charles  v.  Dennis.  42  Wis.  50;  actually  made  be  omitted  from  the 
Hunt  V.  Adams,  7  Mass.  518;  Curtis  contract,  the  defendant  cannot  avail 
V.  Wakefield,  15  Pick.  (Mass.)  437;  himself  of  them.  AVilliams  v.  Rob- 
Williams  V.  Robinson,  73  Me.  186.  insou,  73  Me.  180. 

*  Black  V.  Bachelder,  120  Mass.  171 ; 


120  CONTRACT    OF    SALE. 

signed  by  them.^  Fraud,  duress,  illegality  or  other  matters 
affecting  the  validity  of  the  instrument  or  the  contract  thereby 
evidenced  may  be  shown,  and  parol  evidence  is  fi'cely  and  usu- 
ally necessarily  received  to  demonstrate  the  same,-  but  with  this 
exception  the  rule  holds  absolute;  and  obligations  which  par- 
ties have  deliberately  entered  into  and  put  in  writing,  if  free 
from  ambiguity  or  uncertainty,  cannot  be  pared  down,  taken 
away  or  enlarged  by  parol  evidence."  The  inconvenience  that 
would  arise  if  matters  in  writing  were  left  to  be  proved  by  the 
uncertain  testimony  of  defective  memory  is  apparent  without 
demonstration;  wliile  the  dangers  that  might  result,  even 
where  parties  act  in  good  faith,  is  abundantly  shown  in  the  his- 
tory of  the  decided  cases  where  the  rule  has  been  invoked  and 
applied. 

It  has  been  held  that  the  rule  does  not  apply  where  it  ap- 
pears from  the  writing  itself  that  it  does  not  contain  the  whole 
agreement,'*  and  that  parol  evidence  is  admissible  to  prove  the 
portion  which  the  parties  omitted;  and,  in  like  manner,  that  it 
does  not  operate  to  exclude  proof  of  collateral  or  superadded 
agreements,  provided  the  agreements  so  sought  to  be  proved 
be  not  inconsistent  with  the  writing.  The  admission  of  parol 
evidence  for  these  purposes,  it  is  claimed,  does  not  constitute  a 
real  exception  to  the  rule,- as  it  is  received  on  the  ground  that 
the  agreement  to  which  it  relates  has  not  been  reduced  to 
writing.^  In  ordinary  mercantile  transactions  the  principle  is 
undoubtedly  correct,  or  when  applied  to  any  contract  which, 
although  purporting  to  be  in  writing,  is  not  one  of  the  class 
which  the  law  requires  shall  be  evidenced  by  a  writing.  But  a 
contract  for  the  sale  of  real  estate  cannot  rest  partly  in  parol 
and  partly  in  writing;  ^  and  while  parol  evidence  might  be  com- 
petent to  show  a  total  or  pai'tial  failure  of  consideration  of  a 
contract,  or  possibly  to  show  a  consideration  tlifTerent  from 
that  expressed  in  the  writing,  it  is  certain  that  no  proof  of  con- 

1  Underwood  v.  Simonds,  12  Met.  Ian  v.  Bank,  24  Me.  566;  Ilolbrook  v. 

;Mass.)  27.J.  Hoi  brook,  30  Vt.  432. 

-Sherman    v.    Wilder,    106    Mass.  ^  Frey  v.  Vandenhoof,  15  "Wis.  397. 

537;  Paine  v.   Upton,  87  N.  Y.  327;  5  Hubbard  v.  Marshall,  50  Wis.  322; 

Barnet  v.  Abbott,  78  Vt.  120.  Ciiapman  v.  Dobson,  78  N.  Y.  74. 

3  Black  V.  Bachelder,  120  Mass.  171 ;  «  McConnell  v.  Bdllhart,  17  111.  354 ; 

Knox  V.  Cliflford,  38  Wis.  651 ;  McLel-  Farwell  v.  Lowther,  18  111.  252. 


CONSTRUCTIOX    OF    LAND   COXTRACTS.  UT 

temporaneous  agreements  can  be  received  or  permitteil  to 
control,  where  tlie  elFect  of  such  agreements  would  be  to  sub- 
stitute something  new  or  different,  or  vary  or  change  the  opera- 
tion of  the  contract  as  expressed  in  tlie  writing. 

It  is  to  be  observed,  however,  that  the  rule  which  forbids 
the  introduction  of  parol  evidence  to  contradict,  add  to  or 
vary  a  written  instrument  does  not  extend  to  evidence  offered 
to  show^  that  a  contract  was  made  in  furtherance  of  objects 
forbidden  by  statute,  by  common  law  or  by  the  general  policy 
of  the  law.^ 

The  rules  of  evidence  are  substantially  the  same  at  law  and 
in  equity;  and  parol  evidence  which  tends  to  materially  alter 
a  written  agreement  cannot  be  received  in  a  court  of  equity 
any  more  than  in  a  court  of  law^,-  except  in  cases  of  fraud, 
mistake,  suri)rise  or  accident.' 

§  12.  Continued —Collateral  matters  and  conditions.  It  is 
])resumed  that  when  a  written  agreement  is  entered  into  it  con- 
tains the  whole  of  the  conditions  and  undertakings  of  the  par- 
ties to  the  contract;  and  when  parties,  without  any  fraud  or 
mistake,  have  deliberately  put  their  engagements  in  writing, 
the  law  declares  the  writing  to  be  not  only  the  best  but'  the 
only  evidence  of  the  agreement,  and  courts  are  not  disposed  to 
relax  the  rule.  It  has  been  found  to  be  a  wholesome  one  for 
all  ])urposes;  and  where  parties  are  allowed  to  testify  in  their 
own  behalf,  the  necessity  of  adhering  strictly  to  it  is  all  the 
more  imperative.*  In  some  of  the  states  (notably  in  Pennsyl- 
vania)^ the  stringency  of  this  rule  has  been  considerably  re- 
laxed, not  only  with  reference  to  contracts  which,  while  they 

1  Martin  v.  Clarko,  8  R.  I.  389.  5  it  is  extremely  difficult  to  deter- 

-Dwight  V.  Pomeroy,  17  Mass.  303;  mine  when,   in   Pennsylvania,  parol 

Eveleth  v.  Wilson,    15  Me.  109;  Til-  evidence  is  permissible  to  explain  a 

ton  V.  Tilton,  9  N.  H.  392;  Toonier  v.  written  instrument.     The  courts  of 

Lucas,  13  Gratt.  (Va.)  705;  Richard-  that  state  have  gone  to  great  lengths 

son  V.  Tiiompson,  1  Humph.  (Tenn.)  in  the  matter  of  the  admissibility  of 

151.  parol  evidence,  and  the  Pennsylvania 

3Quinn    v.    Roath,   37    Conn.    16;  decisions  upon  this  subject  cannot  In? 

Bradbury  v.  White,  4  Me.  391 ;  Cham-  said  to  be  in  full  accord  with  the  de- 

bers    V.    Livermore,    15    Mich.    381;  cisions  of  other  states,  or  to  truly 

Ryno  V.  Darby,   20  N.    J.    Eq.    231 ;  represent  the  prevailing  doctrine  on 

Margraff  v.  Muir,  57  N.  Y.  155.  this  subject. 

<  Bast  v.  Bank,  101  U.  S.  90;  Mar- 
tin V.  Berens,  07  Pa.  St.  403. 


128  CONTKACT    OF    SALE. 

have  been  reduced  to  writing,  are  not  such  as  the  law  requires 
shall  be  in  writing,  but  also  in  respect  to  contracts  for  the  sale 
of  real  estate.  But,  even  in  those  states,  the  general  principles 
first  stated  arc  still  rigorously  adhered  to  so  far  as  respects  the 
terms  in  which  the  writing  is  couched,  and  no  case  goes  the 
length  of  ruling  tliat  ])arol  evidence  can  l)e  admitted  to  change 
the  undertaking  itself,  although  it  is  held  that  evidence  which 
goes  to  explain  the  subject-matter  of  an  agreement  is  essen- 
tially different  from  that  which  varies  the  terms  in  which  a  con- 
tract is  conceived. 

It  has  been  held  that  the  rule  as  stated  does  not  prevent  the 
parties  to  a  written  agreement  from  proving  that,  either  con- 
temporaneously or  as  a  preliminary  measure,  they  had  entered 
into  a  distinct  oral  agreement  on  some  collateral  matter  which 
induced  the  execution  of  the  written  obligation,  or  which  con- 
stitutes a  condition  on  which  the  performance  of  the  written 
agreement  is  to  depend.'  There  is  nothing  inconsistent  in  this 
rule  with  that  first  stated,  and  its  denial  must,  in  many  in- 
stances, work  great  hardship  and  injustice;  and  though  it 
finds  its  most  frequent  illustrations  in  contracts  relating  to 
chattel  property,  there  is  no  impropriety  in  applying  it  to 
agreements  providing   for  the  sale  of  real  estate.'^ 

Notwithstanding  the  statute  of  frauds,  it  seems  to  be  a  gen- 
erally accepted  doctrine  that  evidence  is  admissible  of  parol 
agreements  as  to  the  proceeds  of  the  sale  of  lands  ;^  and  this, 
too,  although  the  contract  for  the  sale  of  the  land  was  in 
writing,  if  the  contract  was  made  subject  to  the  agreement.* 

It  would  seem,  therefore,  that  parol  evidence  cannot  be  ad- 
mitted to  establish  a  contemporaneous  parol  agreement  to 
change  the  effect  of  a  written  contract,  or  in  violation  of  its 
terms,  but  may  be  received  to  show  an  oral  promise  or  under- 
taking, material  to  the  subject-matter  of  the  contract  and  col- 

1  Michels  v.  Olmsteaii,  14  Fed.  Rep.  ment  by  the  lessor,  in  consideration 

2L9;  Bown  v.  Morange,  108  Pa.  St.  of  the  lease,  not  to  engage  in  a  rival 

69;  Welz  v.  Rliodius,  87  Ind.  1;  Gal-  business  in  the  same  city.     Welz  v. 

braith  v.  McLain,  84.  111.  379;    Har-  Rhodius,  87  Ind.  1. 

per  V.  Harper,  57  Ind.  547.  sjiovvbridge  v.  Wetherbee,  11  Al- 

-Thus,  a  written   lease  of  a  hotel  len  (Mass.),  361;  Sherrill  v.   Hagan, 

having    been    extended,    parol    evi-  92  N.  C.  345;  Bruce  v.  Hastings,  41 

dence  was  held  competent  to  estab-  Vt.  38. 

i.sh  a  contemporaneous  oral  agree-  *  Michael  v.  Foil,  100  N.  C.  178. 


CONSTRL'CTION    Ol-'    LAND   CONTRACTS.  llilt 

lateral  thereto,  iiiado  by  one  of  the  parties  at  the  time  of  th(; 
execution  of  tlio  writing,  and  which  induced  the  other  party 
to  put  his  name  to  it. 

§  13.  Surrounding  ciicunistances  and  pre-existinj;  rela- 
tions. "While  parol  evidence  is  never  admissible  to  vary,  con- 
tradict or  control  a  written  agreement,  yet  in  construing  the 
same  it  is  proper  to  look  at  all  the  circumstances  surrounding 
the  transaction,  the  pre-existing  relations  of  the  parties,  their 
knowledge  of  tlie  subject-matter  of  the  contract,  and  the  state 
or  condition  of  that  subject-matter.'  To  accomplish  this  parol 
evidence  may  be  resorted  to  without  any  violation  of  the  rule 
first  stated;  and  proof  may  be  given,  by  way  of  explanation, 
to  show  the  situation  of  the  parties,  the  object  in  view,  or 
other  extrinsic  facts  bearing  on  the  question  of  intention, 
which  may  suggest  a  meaning  where  none  was  apparent  be- 
fore, or  which  tend  to  indicate  what  construction  shall  be 
placed  upon  the  language  used  when  the  same  is  susceptible  of 
more  than  one  interpretation.'^  With  the  light  thus  afforded, 
as  well  as  upon  a  view  of  the  whole  instrument,  that  construc- 
tion should  be  adopted  which  seems  most  in  accordance  with 
the  apparent  intent  of  the  parties.^  But  although  courts,  when 
necessary,  put  themselves  in  possession  of  all  the  facts  and  cir- 
cumstances connected  with  the  execution  of  the  instrument 
for  the  purpose  of  ascertaining  the  intention  of  the  parties 
and  explaining  any  ambiguity  arising  from  extrinsic  facts,  yet 
this  is  never  done  where  the  terms  of  the  instrument  are  clear 
and  unambiguous  and  there  is  no  doubt  as  to  the  identity  of 
the  subject-matter  to  which  the  instrument  relates.^ 

It  must  further  be  understood  that,  while  it  is  proper  to  solve 
questions  of  ambiguity  by  throwing  u})on  the  language  used 
the  light  of  surrounding  circumstances,  the  rule,  so  far  as  it 
can  be  invoked  as  a  rule,  is  one  of  interpretation  merely,  and 
does  not  permit  the  making  of  a  new  contract,  or  a  reforma- 
tion of  it,  or  a  disregard  of  its  terms.     It  authorizes  only  a 

1  Springsteen  v.  Samson,  32  N.  Y.        2  <;;i,;^,iii)i.i-s  y,  Falkncr,  Go  Ala.  448; 

706;  Matter  of  N.  Y.  C.  R.  R.  Co.  49  Fenderson  v.  Owen,  54  Me.  372. 
N.  Y.  414;  Emery  V.  Webster,  42  Me.        »  Springsteen  v.  Samson,  32  N.  Y. 

204;  Berridgev.  Glassey.  112  Pa.  St.  706;  Chambers  v.  RingstalT.  69  Ala. 

442;    Evans  v.  Griscom,  42  N.  J.  L.  140. 

579.  *  Stettauer  v.  Hamlin,  97  111.  312. 

9 


130  CONTRACT   OF    SALE. 

just  construction  of  those  terms  and  a  fair  inference  as  to  the 
common  understanding  of  both  the  contracting  parties.^ 

§  14.  Usage  and  custom.  It  is  a  fundamental  proposition 
that  custom  and  usage  are  supposed  to  enter  into  and  form  a 
part  of  all  contracts  where  the  use  or  custom  prevails  in  refer- 
ence to  the  matter  to  ^Yhich  the  contract  relates,-  and  that  the 
contracting  parties  are  not  only  presumed  to  be  acquainted 
with  such  usage,  but  contract  with  reference  to  it.'  This  prop- 
osition, however,  is  usually  restricted  in  its  application  to  mer- 
cantile transactions  or  particular  branches  of  trade,  and  can 
seldom  be  invoked  as  an  aid  in  the  interpretation  of  land  con- 
tracts. 

The  principle  upon  which  proof  of  usage  is  admitted  is  that 
it  serves  to  explain  and  ascertain  the  intent  of  the  parties  upon 
some  point  as  to  which  their  contract  is  silent,  and  as  to  which 
there  existed  a  usage  so  long  continued  and  well  known  as  to 
raise  a  fair  presumption  that  it  was  within  the  view  of  the 
contracting  parties  when  they  made  their  agreement,  and  that 
they  contracted  with  reference  to  and  in  conformity  with  such 
usage  —  thus  explaining  the  silence  or  omission  of  an}^  express 
provision  of  the  contract  itself.*  But  while  a  custom  or  usage 
is  sometimes  permitted  to  affect  a  contract  in  order  to  explain 
or  ascertain  the  intent  of  the  parties,  it  cannot  be  introduced 
in  opposition  to  any  principle  of  general  policy,  nor  if  it  be  in- 
consistent with  the  terras  of  the  agreement,  or  against  the  es- 
tablished principles  of  law;^  and  usually,  where  parties  have 
settled  the  terras  and  conditions  of  a  contract  by  agreement, 
they  will  be  concluded  b}'^  it  regardless  of  an}'  usage  or  custom.* 

§15.  Ambiguities.  A  writing  is  said  to  be  ambiguous  when 
it  is  capable  of  two  or  more  inconsistent  constructions,  or 
where  there  is  an  uncertainty  in  the  meaning  of  the  expres- 
sions used.  The  term  docs  not  include  mere  inaccuracy,  how- 
ever, nor  such  uncertainty  as  arises  frora  the  use  of  peculiar 
words,  or  of  common  words  used  in  a  peculiar  sense,  but  in- 
tends only  such  words  or  expressions  as  would  be  found  of 
uncertain  meaning  by  persons  of  competent  skill  and  informa- 

1  Clark  V.  Woodruff,  83  N.  Y.  518.  '•Lamb  v.  Klaus,  30  Wis.  94;  Kim- 

2Dbane  v.  Dunham,  79  111.  131.  ball  v.  Brawner,  47  Mo.  398. 

3  Life  Ins.  Co.  v.  Advance  Co.  80  5  Wilson  v.  Bauman,  80  111.  493. 

111.  549.  e  Corbett  v.  Underwood,  83  111.  324. 


CONSTRL'CTIOX    OF    LAND    CONTKACfS.  131 

tion.^  Tlie}'^  are  classed  as  patod^  or  those  which  exist  or 
appear  on  the  face  of  the  writing  itself;  and  latent^  or  those 
which  arise  from  some  collateral  circumstance  or  extrinsic 
matter  in  cases  where  the  instrument  itself  is  sufficiently  cer- 
tain and  intelligible.^ 

It  is  a  general  rule  that  patent  aml)iguities,  or  such  as  arise 
upon  the  words  of  the  instrument,  cannot  be  explained  or  re- 
moved by  extrinsic  evidence ; '  and  this  rule  is  usually  strictly 
adhered  to  in  all  cases  of  the  construction  of  written  instru- 
ments. Latent  ambiguities,  or  those  which  arise,  not  upon 
the  words  of  the  instrument  considered  in  themselves,  but  in 
their  application  to  the  subject-matter,  are  governed  by  a  some- 
what different  rule;  and  extrinsic  evidence  will  in  such  cases 
be  received,  not  to  vary  or  change  the  purport  of  the  instru- 
ment, but  to  afford  additional  light  in  interpreting  what  is 
there  written.*  A  latent  ambiguity,  it  is  said,  may  be  assisted 
by  parol  evidence,  because  the  ambiguity  being  raised  by  parol 
may  fairly  be  dissolved  by  the  same  raeans.^  Hence,  where 
any  part  of  the  subject-matter  of  the  contract,  or  the  identity 
of  persons,  places  or  documents  therein  referred  to,  are  uncer- 
tain, and  the  uncertainty  is  shown  by  extrinsic  matters  —  that 
is,  where  the  words  of  the  agreement,  although  certain  in 
point  of  grammatical  construction  and  apparently  definite,  are 
rendered  uncertain  or  of  doubtful  application  by  circumstances 
which  appear  aliunde  —  parol  evidence  of  the  intention  of  the 
parties  at  the  date  of  the  agreement  is  admissible  in  order  to 
identify  the  property,  document  or  other  thing  or  person  in- 

1 1  Bouv.  Law  Diet.  118;  Wigram  well,  35  N.  J.  L.  307;  Lewis  v.  Day, 

on  Wills,  174;  1  Greenl.    Ev.  §  398;  53    Iowa,   575;  Haven  v.    Brown,  7 

Chambers  v.  Rinj,'staff,  69  Ala.  140;  Me.  421. 

Palmer  v.  Abee,  50  Iowa,  429.  •«  Bergin  v.  Williams,  138  Mass.  544 ; 

-1  Bouv.  Law  Die.  118.  Epperson    v.    Young,    8    Tex.    135; 

3  Brown   v.   Brown,  43  N,  H.  25;  Hughes  v.  Wilkinson,   76  Ala.  204; 

Pitts  v.  Brown,  49  Vt.  86;  Panton  v.  Cooper  v.  Berry,  21  Ga.  526;  Picker- 

Tefft,  22  111.  366;  McNair  v.  Toler,  5  ing  v.  Pickering,  50  N.  H.  349;  Ber- 

Minn.   435;  King   v.   King,   7   Mass.  ridge  v.  Glassey,  112  Pa.  St.  442. 

496;  Ayres  v.  Weed,   16  Conn.  291;  ^Storer  v.   Freeman,   6  Mass.  440; 

Waldron  v.  Waldron,  45  Mich.  350;  Webster  v.    Atkinson.   4  N.  H.  23; 

Clark  v.  Lancaster,  36  Md.  196 ;  King  Eveleth  v.  Wilson,  15  Me.  109 ;  Pritch- 

v.  Fink,  51   Mo.  209;   Cliambers  v.  ard  v.  Hieks,  1  Paige  (N.  Y.),  270; 

Ringstaflf,  69  Ala.    140;   Peacher  v.  Brainard  v.  Cowdrey,  16  Conn.  1. 
Strauss,  47  Miss.  358 ;  Horner  v.  Still- 


132  CONTKACT   OF    SALE. 

tended.'     The  subject  will  be  considered  in  detail  in  the  sua- 
ceeding  paragraphs. 

§  16.  Technical  phrases.  In  the  construction  of  contracts 
and  agrecmeats  relating  to  land,  courts  are  not  so  frequently 
asked  to  interpret  technical  expressions  or  terms  of  art  as  in 
contracts  more  intimately  connected  with  commercial  subjects. 
Yet  it  will  often  happen  that  very  great  embarrassment  is  ex- 
perienced in  giving  answers  to  such  questions  as  do  arise  in 
the  proper  adjustment  of  the  rights  of  parties  under  contracts 
for  the  sale  of  interests  in  or  connected  with  real  property. 
Thus,  by  the  use  of  the  terms  "  mines  and  minerals,"  a  wide 
field  is  opened.  It  may  be  that  the  vendor  did  not  intend  to 
include  everything  embraced  in  the  mineral  kingdom  as  dis 
tinguished  from  what  belongs  to  the  animal  and  vegetable 
kingdoms;  if  he  did,  notwithstanding  the  grant  is  only  of  the 
mines  and  minerals,  he  has  parted  with  the  soil  itself.  But 
such  a  construction  in  a  case  similar  to  that  stated  would  be 
inconsistent  with  and  repugnant  to  the  whole  tenor  of  the 
grant.  On  the  other  hand,  there  exists  no  more  propriety  in 
confining  the  meaning  of  the  terms  used  to  any  one  or  more 
of  the  subordinate  divisions  of  the  earth's  composition.  This 
is  cited  as  an  illustration  of  what  may  and  frequently  does 
occur  in  loosely-constructed  agreements,  where  technical 
phrases  are  carelessly  employed  to  denote  matters  which  should 
be  stated  with  specific  exactness  and  accuracy  of  detail. 

The  general  rule  is  that  the  intent,  when  apparent  and  not 
repugnant  to  any  rule  of  law,  will  control  technical  terms, 
and  that,  upon  the  view  and  comparison  of  the  w^hole  instru- 
ment, endeavor  should  be  made  to  give  every  part  of  it  mean- 
ing and  effect.^  If  upon  such  a  survey  it  clearly  appears  that 
a  technical  word  or  phrase  is  used  in  a  sense  evidently  different 
from  its  ordinary  technical  signification,  and  the  sense  in. 
which  it  is  used  is  plainly  shown  by  the  general  manifestation 
of  intention  as  disclosed  by  the  entire  instrument,  courts  will 

iSee  Webster  v.    Blount,  39  Mo.    Hughes  v.  Sandal,  25  Tex.  162;  Ab- 
500;    Huntington  v.  Knox,  7  Cush.    bott  v.  Abbott,  51  Me.  575. 
(Mass.)  371 ;  Oelrichs  v.  Ford,  21  Md.        -'  Parker  v.  Nichols,  7  Pick.  (Mass.) 
i89;   Bell   v.  Woodward,  46   N.    II.    Ill;  Jackson  v.  Blodgett,  16  Johns. 
315;    Wing    v.    Gray,    86  Vt.    261;   (N.   Y.)  172;  Bryan  v.    Bradley,    16 

Conn.  474. 


CONSTRUC'JION    OV    I.AM)    ('ONTRACTS.  133 

usuall}'  give  to  it  that  construction  wliich  the  parties  clearly 
intended.' 

The  terms  may  receive  a  restricted  meaning  through  inter- 
pretation which  has  been  assisted  by  a  survey  of  the  circum- 
stances suiM'ouiiding  the  parties,  and  relating  to  the  subject- 
matter  of  the  contract  at  the  time  when  it  was  made.  As  to  the 
extent  to  which  parol  testimony  is  admissible  in  giving  an  in- 
terpretation or  a  proper  definition  of  the  words  used  no  positive 
rule  can  be  laid  down.  "Where  a  term  of  art  is  enijiloyed,  or 
a  word  connected  with  some  department  of  the  natural  world, 
which  has  become  technical  and  popular  in  its  use  among 
scientific  men  and  men  of  letters,  a  court,  when  called  upon 
to  give  a  construction  to  such  words,  may  avail  itself  of  parol 
testimony  to  ascertain  the  technical  and  popular  use  of  the 
word.  But  parol  testimony  is  not  admissible,  under  any  cir- 
cumstances, to  show  that  the  parties  to  an  instrument  in  w^rit- 
ing  under  seal  placed  upon  a  particular  word  or  phraseology, 
Avhich  controls  the  whole  effect  and  value  of  the  writing,  any 
limited  or  definite  meaning  for  the  purposes  of  that  particular 
transaction. 

Good  conveyancing  will  strictly  exclude  ambiguous  terms, 
words,  symbols  and  other  expressions  of  like  character;  yet,  as 
these  matters  are  constantly  employed,  courts  are  frequently 
called  upon  to  furnish  an  interpretation  of  them.  Thus,  the 
symbol  "etc."  is  often  employed  in  connection  with  specific 
terms  of  exact  and  restricted  meaning;  as  where  parties  make 
calculations  and  adjustments  of  the  amounts  to  be  paid  with 
reference  torrents,  interest,  etc."  The  use  of  this  sign  or 
term  ma}^  sometimes  present  an  apparent  ambiguity ;  but  where 
a  view  of  the  subject-matter  of  the  agreement  and  the  situa- 
tion of  the  parties  gives  a  clear  presentation  of  the  evident 
design  and  intention  of  the  parties,  the  use  of  this  symbol 
would  import  no  other  matters  of  adjustment  than  those  sim- 
ilar in  their  nature  to  what  were  named.  Thus,  in  the  exam- 
ple given,  the  use  of  the  sign  "etc."  in  this  way  should  be 
deemed  to  have  reference  only  to  such  matters  as  bore  some 
relation  to  the  current  of  accrued  earnings  and  liabilities  of 

1  Central  Pac.   R.   R.   Co.  v.  Beal,    Mo.    334;    Jackson    v.    Blodgett,   16 
47  Cal.   151 ;  IMorrison  v.  Wilson,  80    Johns.  (N.  Y.)  173. 
Cal.  344;  Bradsliaw  v.  Bradbury,  64 


134  CONTRACT   OF   SALE. 

the  premises,  and  which  obviously  had  to  be  in  some  way 
adjusted  between  seller  and  purchaser,^ 

§17.  Contemporaneous  writinijs.  When  two  written  in- 
struments are  executed  contemporaneously,  each  relating  to 
the  same  subject-matter,  and  the  one  referring  to  the  other, 
the  presumption  is  that  they  evidence  but  a  single  contract,^ 
and  the  two  instruments  should  be  construed  together  in  deter- 
mining the  meaning  of  the  parties  thereto.''  This  would  follow 
as  a  matter  of  course  in  case  of  duplicate  agreements  mutually 
signed  and  interchangeably  delivered,  but  the  principle  has 
been  extended  to  cover  all  the  writings  and  papers  employed 
by  the  parties  in  conducting  their  negotiations ;  and  even  though 
some  of  the  writings  are  unsigned,  if  it  clearly  appears  that 
their  matter  has  been  recognized  and  adopted  by  the  parties, 
they  may  still  be  considered  with  the  others  and  taken  as  part 
of  the  contract.^  In  this  event,  however,  there  must  be  a 
direct  reference  to  the  unsigned  writings,  so  that,  in  effect, 
they  shall  become  incorporated  into  and  form  a  part  of  the 
papers  bearing  the  signatures,  and  the  reference  must  be  so 
clear  as  to  prevent  any  other  paper  being  substituted  for  them. 
Where  a  writing  is  thus  referred  to  it  may  be  identified  by 
parol,^  but  a  paper  to  which  no  reference  has  been  made  can- 
not be  introduced  to  supply  a  term  or  cure  any  other  defect.* 

Asa  rule,  to  justify  the  construction  of  two  separate  writings 
as  constituting  but  one  transaction,  there  must  be  identity  of 
parties  and  date.^  They  must  appear  on  their  face  to  have 
been  simultaneous  or  practicall}''  so,  and  the  question  of  time 
is  usually  considered  material.     This  rule  is  not  unyielding, 

1  Lathers  v.  Keogh,  109  N.  Y.  583.  Rogers  v.  Kneeland,  10  Wend.  (N.Y.) 
Held,  in  this  case,  that  a  tax  was  not  218;  Strong  v,  Barnes,  11  Vt.  221; 
analogous.  Sewall  v.  Henry,  9  Ala.  24 ;  Stacey  v. 

2  Byrne  v.  Marshall,  44  Ala.  355:  Randall,  17  111.  467;  Wallace  v.  Beau- 
Canterberry  v.  IMiller,  76  111.  355;  champ,  15  Tex.  303;  Salmon  Falls 
Pillow  V.  Brown,  26  Ark.  240 ;  Smith  Mfg.  Co.  v.  Portsmouth,  46  N.  H. 
V.  Turpin,  20  Ohio  St.  478;  Babbitt  249;  Norton  v.  Kearney,  10  Wis.  443. 
V.  Globe  Ins.  Co.  06  N.  C.  71 ;  Morss  ^  Johnston  v.  Buck,  35  N.  J.  L.  338. 
V.  Salisbury,  48  N.  Y.  636;  Stow  v.  SBeckwith  v.  Talbot,  95  U.  S.  289. 
Tifft,  15  Johns.  (N.  Y.)  458;  King  v.  6  Freeport  v.  Bartol,  3  Greenl.  (Me.) 
King,  7  Mass.  499;  Doe  v.  Bernard,  340;  Morton  v.  Dean,  13  Met.  (Mass.) 
15  Miss.  319;  Norton  v.  Kearney,  10  385;  Ridgway  v.  Ingram,  50  Ind.  145. 
Wis.  443.  7  Craig  v.  Wells,  11  N.  Y.  315. 

»  Moras  v.  Salisbury,  48  N.  Y.  636 ; 


CONSTRUC'IIOX    OF    LAND    COXTKACTS.  135 

however,  and  there  are  cases  of  separate  writings  or  instru- 
ments tliat  may  be  so  construed  even  though  executed  at  dif- 
ferent tiines.  Thus,  where  there  has  been  a  special  agreement, 
and  a  subsequent  agreement  is  made  the  efiFect  of  which  is  not 
to  create  an  absohite  independent  contract,  but  simply  a  mod- 
ification of  the  original,  to  which  reference  is  made,  both 
should  be  taken  together  as  one  instrument  and  be  construed 
according  to  the  intent  of  the  parties  as  collected  from  the 
whole  contract.' 

Nor  is  it  absolutely  necessary  that  the  instruments  should 
in  terms  refer  to  each  other,  if  in  point  of  fact  they  are  parts 
of  a  single  transaction.  But  until  it  appears  that  the}''  are 
such,  either  from  the  writings  themselves  or  by  competent  ex- 
trinsic evidence,  they  cannot  be  brought  within  the  operation 
of  the  rule.  That  they  are  made  between  the  same  parties 
and  have  the  same  date  are  significant  facts;  yet,  where  there 
is  no  reference  in  either  to  the  other,  it  is  not  inferable  from 
these  facts  alone  that  they  are  parts  of  a  single  transaction. 
It  may  be  that  the  same  parties  should  have  several  transac- 
tions in  one  day,  and  of  the  same  general  nature,  and  yet  each 
one  should  be  distinct  and  wholly  independent  of  the  other. 
It  is  therefore  of  vital  importance  not  only  that  there  shall 
be  identity  of  parties  and  correspondence  of  time,  but  that 
the  writings  plainly  disclose  their  relation  to  the  same  subject- 
matter.  Where  these  features  do  not  combine,  and  the  writ- 
ings do  not  refer  to  each  other,  neither  can  in  any  way  be 
made  to  qualify  or  affect  the  legal  construction  of  the  other, 
and  parol  evidence  will  be  inadmissible  to  vary  or  control 
their  legal  effect  or  operation.^ 

1  Van  Ilagen  v.  Van  Rensselaer,  18  130.  It  has  been  held  that  the  gen- 
Johns.  (N.  Y.)  420;  Adams  V.  Hill,  16  eral  rule  that  collateral  papers  ad- 
Me.  215.  Letters  from  a  principal  to  duced  to  supply  the  defect  of  signa- 
his  agent  may  afford  a  "  memoran-  ture  of  a  written  agreement  under 
dum  or  note"  of  a  contract  of  sale  the  statute  of  frauds  should  on  their 
effected  through  the  agent,  suHlcient  face  sufficiently  demonstrate  their 
under  the  statute  of  frauds,  where  reference  to  such  agreement  without 
the  letters  refer  to  and  connect  with  the  aid  of  parol  proof  is  subject  to 
each  other,  and,  taken  as  a  whole,  some  exceptions,  and  that  parol 
show  clearly  the  fact  and  terms  of  proof,  if  clear  and  satisfactory,  may 
such  sale,  and  a  sufficient  description  be  received  to  identify  the  agreement 
of  the  land.  Lee  v.  Cherry,  85  Tenn.  referred  to  in  such  collateral  papers. 
707.  Beck%\  ith  v.  Talbot,  95  U.  S.  289. 

2  Cornell  v.  Todd,  2  Denio  (N.  Y.), 


136  CONTRACT    OF   SALE. 

§  1 8.  Continued  —  When  variant  from  each  other.  Where 
two  instruments,  executed  by  the  same  parties  at  the  same  time 
and  in  relation  to  the  same  subject-matter,  are  construed  to- 
gether as  a  part  of  the  same  transaction,  one  cannot  be  re- 
garded as  more  expressive  of  the  intent  of  the  parties  than 
the  other.  If  in  respect  to  any  particular  clause  such  instru- 
ments var}'^  in  their  language,  the  true  intent  is  to  be  ascer- 
tained by  an  examination  of  the  terms  and  provisions  which 
are  identical  in  each  and  the  objects  and  purposes  contem- 
plated by  the  parties  thus  determined.^  Particularly  is  this 
true  where  the  instruments  were  intended  to  be  duplicates, 
and  to  express  the  same  terms  and  employ  the  same  language. 
Both  are  to  be  regarded  as  originals,  and  each  is  entitled  to 
equal  faith  and  credit.  The  want  of  accuracy  in  one  is  not 
proven  by  the  mere  production  of  the  other. 

§  19.  Unintelligible  expressions.  It  will  sometimes  hap- 
pen, however,  that  even  under  the  most  favorable  construction 
words  and  phrases  still  remain  unintelligible;  and  where  no 
meaning  can  be  o^iven  to  a  word  from  the  connection  in  which 
it  is  used,  nor  consistently  with  express  provisions,  nor  upon  a 
full  examination  of  the  whole  instrument,  such  word  or  term 
may  be  treated  as  surplusage  and  disregarded.^ 

Clerical  omissions,  when  they  clearly  appear,  although  by 
strict  construction  creating  unintelligible  or  meaningless  ex- 
pressions, are  usually  disregarded  when  the  general  intent  is 
manifest  from  the  whole  instrument  taken  in  connection  with 
attendant  circumstances  or  viewed  in  the  light  of  other  trans- 
actions of  a  similar  nature.^ 

§  20.  Printed  blanks.  The  use  of  what  is  popularly  termed 
"  printed  blanks  "  is  now  well-nigh  universal,  their  labor-saving 
qualities  commending  them  to  the  indolent  and  their  supposed 
legal  efficacy  to  the  ignorant.  To  the  amateur  conveyancer 
they  are  a  priceless  boon,  and  even  the  skilled  draftsman 
gladly  avails  himself  of  their  use.     Ordinarily,  every  part  of 

1  Munson  v.  Osborn,  10  Jll.  App.  acres  of  land  for  ten  per  acre,"  which 
508;  Morss  v.  Salisbury,  43  N.  Y.  636.  was  accepted,  the  purchaser  agreeing 

2  Tucker  v.  Meeks,  2  Sweeny  (N.  to  pay  "  what  you  ask  —  four  hun- 
Y.),  736 ;  Decorah  v.  Kesselmeier,  45  dred  dollars  "  —  there  being  no  possi- 
lowa,  166.  bility  of  doubt  as  to  its  meaning. 

'  Thus,  a  contract  is  not  invalid  be-   N.  W.  Iron  Co.  v.  Meade,  21  Wis. 
cause  of  the  omission  of  the  word   474. 
"dollars"  in  an  offer  to  sell  "forty 


CONSTRUCTION    OF    LAND   CONTRACTS.  137 

ail  iiistriiiiieiit  is  entitled  to  ec|ual  consitleration,  and  is  to  bo 
taken  as  equally  expressive  of  intention;  yet  in  the  construc- 
tion of  this  class  of  writings  it  is  an  established  rule  in  the  in- 
terpretation of  the  language  that  greater  weight  should  be 
given  to  the  written  than  to  the  printed  words  where  they 
lead  different  ways  and  tend  to  contrary  results.'  The  lan- 
guage of  printed  blanks  is  easily  assumed  to  be  appropriate 
without  careful  e.xauiination,  while  the  written  words  more 
safely  and  more  nearly  indicate  the  intention  of  the  contract- 
ing jiarties;  and  for  this  reason  where  parties,  in  attempting 
to  reduce  their  agreement  to  form,  use  a  blank  containing  a 
printed  paragraph  which  is  entirely  inconsistent  with  a  pro- 
vision written  in  the  blank,  and  it  appears  that  by  inadvert- 
ence the  blank  as  filled  is  signed  without  erasing  the  printed 
paragraph,  the  written  provision  must  control  and  will  be 
taken  as  expressing  the  real  contract.- 

§  21.  Interlineations  —  Erasures-  Among  the  many  per- 
plexing questions  which  arise  upon  the  construction  of  written 
instruments  is  that  which  is  raised  by  the  insertion  of  words  in- 
terlined upon  the  face  of  the  writing.  It  is  not  necessar}',  to 
give  validity,  that  the  writing  should  be  regular  or  in  properly- 
disposed  courses;  that  the  lines  should  be  straight,  and  that 
every  word  should  find  its  appropriate  place  in  unbroken  con- 
tinuity of  sentences.  This  is,  of  course,  desirable ;  and  there  are 
not  wanting  authorities  which  hold  that  an  interlineation  is 
presumably  an  unauthorized  alteration,  and  that  the  burden  of 
proof  is  upon  the  party  offering  the  instrument  in  evidence  to 
show  the  contrary.'  On  the  other  hand,  there  are  cases  in 
which  interlineations  have  been  held  to  create  conditions  ex- 
actly the  reverse.  The  true  rule,  and  the  one  which  governs 
in  all  such  cases,  would  seem  to  be  this:  If  the  interlineation 
is  in  itself  suspicious,  as,  if  it  appears  to  be  contrary  to  the 
probable  meaning  of  the  instrument  as  it  stood  before  the  in- 
sertion of  the  interlined  words;  or  if  it  is  in  a  handwriting  dif- 
ferent from  the  body  of  the  instrument,  or  ap[)ears  to  have 
been  written  with  different  ink, —  in  all  such  cases,  if  the  court 
considers  the  interlineation  suspicious  on  its  face,  the  presurap- 

1  Clark  V.  WoothulT,  83   N.  Y.  518;        -Pt'Ople  v.  Dtilaney,  90  III.  503. 
Hill  V.  Miller,  7G  N.  Y.  32;  Auierican        a  See  McAllister  v.   Avery,    17  IlL 
Ex.  Co.  V.  Pinckuey,  29  111.  392.  App.  508. 


138  CONTKAOT   OF   SALE. 

tiou  will  be  that  it  was  an  unauthorized  alteration  after  execu- 
tion. On  the  other  hand,  if  the  interlineation  appears  in  the 
same  handwriting  with  the  original  instrument,  and  bears  no 
evidence  on  its  face  of  having  been  made  subsequent  to  the 
execution  of  such  instrument,  and  especially  if  it  only  makes 
clear  what  was  the  evident  intention  of  the  parties,  the  law  will 
presume  that  it  was  made  in  good  faith  and  before  execution,^ 

The  foregoing  remarks  on  interlines  have  practically  the 
same  application  to  erasures,  substitutions  or  alterations  of  any 
kind.  An  erasure  or  other  alteration  of  an}''  material  part  of  an 
instrument,  after  execution,  avoids  it;  and  it  is  for  the  jury  to 
decide  whether  the  alteration  was  made  after  delivery.^  But 
the  construction  of  deeds  is  the  province  of  the  court,  and  the 
materiality  of  an  alteration  is  a  question  of  construction; 
hence,  whether  erasures  or  alterations  are  material  or  not  is  a 
question  of  law  to  be  decided  by  the  court.' 

§  22.  Proposals  aud  offers.  A  mere  proposal  or  offer, 
though  made  in  writing  and  signed  by  the  proponent,  creates 
no  obligation  on  the  part  of  the  person  making  the  same,  unless 
accepted  by  the  person  to  whom  the  same  is  made  according 
to  its  terras.  Being  made  without  consideration,  and  not  pos- 
sessing the  essential  element  of  mutuality,  the  party  making 
an  offer  has  a  right  to  withdraw  it  any  time  before  the  one  to 
whom  it  is  made  accepts  it;*  and  this,  too,  notwithstanding  a 
time  was  named  within  which  the  offer  might  be  accepted.' 
But  where  the  person  so  proposing  allows  his  offer  to  remain 
open  until  accepted,  it  is  then  too  late  to  recede.^   Where,  how- 

iBeaman  v.   Russell,  20   Vt,  205;   Held,   that    the    interlineation    was 
Burnham    v.   Ayer,   35    N,    H.  351 ;   made  i^rior  to  execution. 
Stoner  v.  Ellis,  G  Ind.  152 ;  Nichols  v.       ^  Vanhorne  v.  Dorrence,  2  Dall.  (C. 
Johnson,  10  Conn.  192;  Huntington   Ct.)  304. 

V.  Finch  &  Co.  3  Ohio  St.  445;  Cox  s  Steele  v.  Spencer,  1  Pet.  (U,  S.)  552, 
V,  Palmer,  3  Fed.  Eep.  16.  In  this  <  Conner  v.  Reneker,  25  S.  C.  514; 
case  there  appeared  interlined  upon  Perkins  v.  Hadsell,  70  111.  216;  Rich- 
the  face  of  a  mortgage  the  words  ardson  v.  llardvvick,  106  U.  S.  253; 
"  block  19,"  without  which  the  prop-  Smith  v.  Reynolds,  3  McCrary  (C.  Ct.), 
erty  described  could  not  be  located.  157;  Coleman  v.  Applegarth,  68  Md. 
The  interlineation  was  in  the  hand-   21. 

writing  of  the  draftsman,  who  had  *  School  Directors  v.  Trefethren,  10 
not,  since  the  time  of  execution,  111.  App.  127;  Smith  v.  Reynolds,  3 
had  the  instrument  in  his  possession.    McCrary  (C.  Ct.),  157. 

6  Perkins  v.  Hadsell,  50  111.  216. 


CONSTRUCTION  OF  LAND  CONTBACTS.  139 

ever,  the  time  for  acceptance  is  not  limited,  the  proposition 
must  be  acccj)ted  within  a  reasonable  time,  to  be  determined 
by  all  the  circumstances  of  the  case.^ 

A  covenant  in  a  lease  giving-  the  right  to  purchase  the  prem- 
ises on  specilicd  terms  is  a  continuing  oiler  to  sell,  which,  when 
accepted,  constitutes  a  contract  of  sale.  The  proposition,  un- 
less otherwise  qualified,  extends  through  tlie  whole  period  of 
the  demise,  and  if  the  lease  is  under  seal  must  be  regarded  as 
made  upon  a  suflBcient  consideration,  and  therefore  one  from, 
which  the  vendor  is  not  at  liberty  to  recede.-  If  the  lease  is 
not  under  seal  the  contract,  if  strictly  interpreted,  cannot  be 
said  to  be  mutual;  the  lessee  is  under  no  obligation  to  pur- 
chase, either  at  law  or  in  equity,  and  the  lessor  can  have  no 
remedy  on  it.  The  earlier  cases,  both  in  England  and  America, 
hold  that  want  of  mutuality  of  obligation  and  remedy  is  a  bar 
to  specific  performance;*  but  modern  authorities  have  nar- 
rowed this  doctrine  down  to  cases  in  which  there  is  no  other 
consideration.  An  optional  agreement  to  convey,  without  any 
covenant  or  obligation  to  purchase,  and  without  mutuality  of 
remedy,  will  now  be  enforced  in  equity  if  it  is  made  upon 
proper  consideration  or  forms  part  of  a  lease  or  other  contract 
between  the  parties  that  may  be  the  true  consideration  for  it.* 
Thus,  it  is  said  that  in  taking  a  lease  a  tenant  may  be  willing 
to  pay  a  high  rent  for  a  number  of  3'ears,  provided  the  land- 
lord will  give  him  an  optional  right  to  purchase  at  a  fixed 
price;  and  it  is  to  be  presumed  that  the  landlord  would  not 
agree  to  such  a  concession  unless  he  had  a  consideration  in  the 
lease.  Any  sufficient  consideration  would  make  such  unilateral 
contract  binding  in  equity.^  An  option  given  in  a  lease  should, 
however,  comply  with  the  general  rules  relative  to  agreements 
for  the  sale  of  land,  and  if  indefinite  or  uncertain  will  be  in- 
sufficient as  a  ground  for  specific  performance.'* 

1  Larmon  v.  Jordan,  56  111.  204.  a  lease  which  provides  that  the  lessee 

2  Willard  v.  Taylor,  8  Wall.  (U.  S.)   sliall  have  the  privilege  of  purchasing 
557.  for  a  fixed  price  on  or  before  the  ex- 

sParkhurst  v.   Van    Cortlandt,    1  piration  of  the  term.    Hall  v.  Center, 

Johns.    Ch.    (N.   Y.)  282;    Smith   v.  40  Cal.,  63;  and   see  McLaughlin  v. 

McVeigh,  11  N.  J.  Eq.  239.  Perrj-,  85  Md.  352. 

4  Backhouse  v.    Mohun,   3   Johns.  5  Hawralty  v.  Warren,  18  N.  J.  Eq. 

(N.  Y.)  434;  Hawraity  v.  Warren,  18  124. 

N.  J.  Eq.   124.     Equity  will  decree  6  Thus,   an   agreement  in  a  lease 

specific  performance  of  a  covenant  in  that  "  if  the  premises  are  for  sale  at 


140  CONTKACT   OF    SALE. 

A  unilateral  contract  or  offer,  in  writing,  simply  giving  an 
option  to  purchase  within  a  specified  time  for  a  given  price,  is 
binding  only  upon  the  ]>arty  who  signs  it,  and  upon  him  only 
for  the  time  stipulated  for  the  exorcise  of  the  option.  Time  is 
of  the  very  essence  of  such  an  agreement;  and  when  the  time 
limited  has  expired  the  contract  is  at  an  end,  notwithstanding 
a  nominal  consideration  ma}''  have  been  paid  to  the  owner  of 
the  propert}'  for  the  privilege  of  the  option.' 

A  proposal,  to  be  effective,  must  be  unequivocal  and  clear. 
An  offer  must  be  fairl}'-  deducible  from  the  writing  alleged  to 
be  a  proposal,  or  from  this  in  connection  with  other  writings; 
and  mere  statements,  not  amounting  to  an  offer  or  evincing  a 
desire  to  sell,  cannot  be  construed  into  a  proposal.  This  is  well 
illustrated  in  the  case  of  one  who  writes  aland-owner,  inquiring 
the  price  of  his  land  or  the  terms  upon  which  he  will  sell  it.  If, 
in  response  to  such  letter,  the  land-owner  names  a  price  or  even 
specifies  terms,  this  will  not  be  equivalent  to  a  proposal  to  sell 
the  land.  The  mere  statement  of  the  price  at  which  property 
is  held  cannot  be  understood  as  an  offer  to  sell;  for  the  seller 
may  desire  to  choose  the  purchaser,  and  may  not  be  willing  to 
part  with  his  property  to  any  one  who  offers  his  price.^ 

§  23.  Acceptance.  It  may  be  stated  generally  that  an  oral 
acceptance  of  a  mere  proposal  or  offer  in  writing  will  not  sat- 
isfy the  requirements  of  the  statute  of  frauds,  which  is  explicit 
in  its  provisions  that  the  entire  contract  shall  be  evidenced  by 
or  deducible  from  writings.  It  is  necessary,  therefore,  to  create 
a  valid  obligation,  that  the  acceptance  shall  itself  be  in  writing, 
and  unqualified  or  without  variance  of  any  kind  between  it  and 
the  proposal,  so  that  it  shall  clearly  appear  that  there  has  been 
a  full  accession  on  both  sides  to  one  and  the  same  set  of  terms.' 

But  this  rule  is  not  without  apparent  exceptions,  and  circum- 
stances will  sometimes  be  permitted  to  operate  as  an  accept- 
ance where  fraud  might  be  perpetrated  or  injustice  result  from 
a  strict  adherence  to  the  rule.  Thus,  where  offers  are  made  or 
options  given  for  the  purchase  of  land,  and  certain  conditions 
are  imposed  upon  the  party  to  whom  the  option  is  given,  as 

any  time  the  lessee  shall  have  the  re-       '  Coleman  v.  Applegarth,  68  Md.  31. 
fusal  of  them  "  is  too  indefinite  to  be       2Kniglit  v.  Cooiey.  3-i  Iowa,  218. 
enforced  specifically.    Fogg  v.  Price,       '■^  Lang  v,  McLaughlin,  14  Minn.  72; 

145  Mass.  513.  Bruuer  v.  AVheaton,  46  Mo.  363. 


CONSTRUCTION    OK    LAM)    CONTUACTS.  Ill 

that  he  shall  move  uj^on  or  improve  the  property,  pay  taxes, 
etc.,  upon  the  performance  of  which  the  owner  agrees  to  con- 
vey on  payment  of  a  stipulated  price,  a  valid  acceptance  may 
be  created  by  the  perforuuince  of  the  conditions  so  imposed.* 
In  such  cases  the  payment  of  the  purchase  price  is,  of  course, 
one  of  the  conditions;  luid  while  there  is  no  agreement  ex- 
pressed in  the  writing  by  the  purchaser  to  pay  such  price,  the 
performance  of  the  other  conditions  annexed  and  the  tender  of 
the  purchase  money  at  or  within  the  time  stipulated  will  con- 
stitute a  suflicient  consideration  to  make  the  agreement  bind- 
ing upon  the  vendor.-  Prior  to  the  acts  of  acceptance,  as  the 
performance  of  conditions,  etc.,  the  vendor  may  withdraw  his 
offer,  for  up  to  that  time  there  is  no  consideration  to  support 
the  agreement;  but  if  he  allows  his  offer  to  remain  open  until 
the  vendee  has  accepted  it  by  doing  all  that  he  is  required  to 
do  by  its  terms,  it  is  then  too  late  to  recede.^ 

It  is  sometimes  urged,  in  cases  of  this  kind,  as  an  excuse  for 
non-performance  by  the  vendor,  that  the  vendee,  even  by  en- 
tering upon  the  land,  incurs  no  obligation  that  the  vendor 
could  enforce,  and  for  that  reason  the  agreement  is  not  bind- 
ing for  want  of  mutuality.  This  is  undoubtedly  a  true  con- 
struction of  the  instrument;  but  if  the  vendee  does  not  choose 
to  avail  himself  of  this  privilege  and  does  perform  all  that  is 
necessary  to  entitle  him  to  the  land,  it  would  be  inequitable 
to  permit  the  vendor  to  refuse  compliance  with  his  promise 
on  the  ground  that  the  vendee  was  not  bound  by  contract  to 
do  the  same.  The  acts  having  been  induced  by  the  unrevoked 
promise  of  the  vendor,  equity  would  not  permit  him  to  plead 
want  of  mutuality  or  consideration.  Indeed,  neither  of  these 
elements  can  properly  be  said  to  be  wanting;  for  the  mutual- 
ity and  consideration  in  such  a  case  consist  in  having  actu- 
ally done,  upon  the  promise  of  the  other  party,  what  ho 
required  to  have  done,  and  it  is  immaterial  that  it  was  done 
without  having  entered  into  a  previous  undertaking  to  do  it.' 

After  the  time  has  passed  within  wliich  one  is  allowed  the 
privilege  of  electing  to  purchase  land  on  certain  terms,  a 
tender  and  offer  to  perform  comes  too  late.^ 

1  Mix  V.  Balduc,  7SI11.  21.j;rerkin3  s  Perkins  v.  Hadsell,  .lO  111.  216; 
V.  Hadsoll,  50  111.  21G.  Coleman  v.  Apple-jartli,  68  Md.  21. 

-  Mix  V.  Balduc,  IS  111.  215.  l  Perkins  v.  Iladsell,  T)!)  III.  216. 

5  Longfellow  v.  Moore,  102  111.  289, 


142  CONTKACT    OF    SALE. 

The  written  acceptance  of  a  verbal  offer,  not  containing  its 
terms,  is  within  the  statute  of  frauds  and  inoperative  against 
the  person  making  it;  and  notwithstanding  that  such  offer  is 
afterwards  reduced  to  Avriting  in  the  form  of  a  contract  by 
the  party  making  it  and  offered  to  the  party  to  whom  it  is 
made  to  sign,  the  latter  may  refuse  and  will  not  be  bound 
by  it.^ 

In  the  case  of  bilateral  contracts,  which  contain  mutual 
obligations  and  reciprocal  promises,  such  as  are  ordinarily  in- 
serted in  contracts  of  sale,  if  the  writing  fully  expresses  the 
agreement  the  rights  of  the  parties  are  fixed  by  it.  It  is  cus- 
tomary and  proper  to  have  such  contracts  signed  by  both  par- 
ties, and  a  mutual  acceptance  thereof  thus  signified  in  writing; 
yet  it  is  well  settled  that  the  signature  of  one  part}'-  only  is 
sufficient,  provided  he  be  the  one  who  is  sought  to  be  charged 
thereb}^;  while  in  many  states  the  rule  obtains  that  the  accept- 
ance by  one  party  of  a  contract  for  sale  executed  onl}'^  by  the 
other  binds  the  accepting  party  as  well,  and  that  the  instru- 
ment is  regarded  as  being  as  much  the  written  agreement  of 
the  latter  as  the  former.^ 

§  24.  Operation  and  effect.  The  ordinary  effect  of  an 
agreement  to  convey  imports  nothing  more  than  an  executory 
promise,  and  the  operation  of  the  instrument  will  not  usually 
be  extended  beyond  this;  yet  it  will  often  happen  that  parties, 
through  ignorance  of  the  legal  effect  of  words,  inadvertence 
or  mistake,  make  use  of  language  which,  standing  alone,  indi- 
cates a  present  grant  rather  than  a  mere  agreement  for  some 
future  action. 

The  employment  of  the  words  "  grant,  bargain  and  sell," 
or  "  do  sell,"  or  "  by  these  presents  do  sell  and  convey,"  or 
words  of  like  character,  all  import  a  present  grant,*  and  their 
use  is  by  no  means  unfrequent  in  agreements  for  conveyance. 
But,  notwithstanding  the  contract  contains  words  of  convey- 
ance in  2>rcBsenti,  still  if  from  the  whole  instrument  it  is  mani- 
fest that  further  conveyances  were  contemplated  by  the  parties, 
it  will  be  considered  an  agreement  to  convey  and  not  a  con- 
veyance.*    In  determining  whether  an  instrument  is  an  imme- 

1  Washington  Ice  Co.  v.  Webster,  3  Garver  v.  McNully,  39  Pa.  St.  484 ; 
62  Me.  341.  Johnson  v.  Filson,  118  111.  219. 

2  Lowber  v.  Connit,  36  Wis.  176 ;  *  Jackson  v.  Moncriet,  5  Wend.  (N. 
Hubbard  v.  Marshall,  50  Wis.  323.  Y.)  26 ;  Ogden  v.  Brown,  33  Pa.  St. 


CONSTRUCTION    oK    I.AXU   CONTUACTS.  143 

diate  conveyance  or  only  an  executory  contract,  the  intention 
of  the  parties  must  be  sought  for  in  every  part  of  the  instru- 
ment. If  it  contains  words  of  present  assurance,  these  words 
afford  a  presumption  that  an  executed  conveyance  was  in- 
tended. But  this  presumption  is  not  conclusive;  it  may  be 
overcome  by  the  presence  of  other  words  which  contemplate  a 
future  conveyance.^  Intention  is  so  imperative  in  the  con- 
struction of  grants  that  the  strongest  words  of  conveyance  in 
the  present  tense  have  been  held  inoperative  to  pass  the  estate 
if  other  parts  of  the  writing  evince  a  contrary  intention  or 
tend  to  show  that  the  agreement  itself  was  not  desiicned  to 
pass  title.- 

If  the  instrument  is  called  by  the  parties  an  agreement,  this 
is  a  circumstance  of  importance;  for  in  popular  understanding 
there  is  a  distinction  between  an  agreement  and  a  deed,  the 
former  being  regarded  as  preparatory  to  the  latter;  and  gen- 
erally, if  by  the  terms  of  the  contract  any  material  act  remains 
to  be  done,  effect  will  be  given  to  the  instrument  only  as  an 
agreement  to  sell. 

On  the  other  hand,  courts  have  no  right  to  do  violence  to  the 
express  terms  of  an  instrument,  and,  where  such  instrument 
contains  the  ordinary  and  technical  words  to  pass  title,  cannot 
entirely  disregard  them.  If  there  is  nothing  in  the  instrument 
to  limit  or  qualify  the  efifect  of  apt  words  of  conveyance,  not 
withstanding  it  may  provide  for  a  conveyance  in  the  future, 
the  writing  ma}^  still  have  effect  as  a  present  conveyance,  and 

247 ;  Broadwell  v.  Raines,  34  La.  Ann.  1850.     I  do  hereby  agi-ee  that  J.  P. 

677.  shall  have  the  land  which  he  is  in 

1  Williams  v.  Bently,  27  Pa.  St.  301.  possession  of  now   for  the  labor  he 

^Optden  V.  Brown,  33  Pa.  St.  247;  done  for  me  over  age ;  and  this  shall 

Jackson  v.  Moncriet,  5  Wend.  (N.  Y.)  be  his  receipt  for  all  my  rights  and 

26.     A.  placed  B.  in  possession  of  a  claims  against  the  land.      [Signed] 

plantation  and  certain  personal  prop-  D.  P." —  does  not  convey  the  absolute 

erty   thereon,   under    an  agreement  title  to  the  land  for  want  of  words  of 

which  stated,   "  I  have  this  day  bar-  limitation,  but  is  merely  a  receipt  for 

gained,    sold   and   delivered   to "   B.  the  purchase    money   of    the    land, 

tlip  plantation  and   articles  of  per-  Such   writing,    however,  constitutes 

Roual  property  enumerated.      Held,  an  agreement  to  convey  sufficient  for 

that  the  contract  was  evidence,  not  equity  to  execute,  and  is  not  within 

of  a  sale,  but  of  an  agreement  to  sell,  the  statute  of  frauds.      Phillips  v. 

Rroadwell  v.  Raines,  34  La.  Ann.  677.  Swank,  120  Pa.  St.  76. 
The  following  writing:   "  August  20, 


144  CONTKACT    t)F    SALE. 

the  agreement  to  make  a  deed  at  a  future  day  be  regarded  as 
simpl}'-  equivalent  to  a  covenant  for  further  assurance.^ 

It  would  seem,  therefore,  that,  in  the  determination  of  the 
question  as  to  whether  an  informal  instrument  shall  be  con- 
strued as  a  conveyance  or  only  an  agreement  to  sell,  the  pri- 
mary rule  is  the  evident  intention  of  the  parties  derived  from 
the  instrument  itself,  and,  when  that  is  doubtful,  from  the  cir- 
cumstances attending  its  execution.-  Technical  words  of  con- 
veyance are  not  necessar}'  to  constitute  an  executed  contract, 
neither  does  their  presence  necessarily  indicate  one.  Notwith- 
standing technical  words  of  present  grant  are  used,  yet,  if  by 
reason  of  something  further  to  be  done,  or  from  the  tenor  of 
the  whole  instrument,  the  design  of  the  parties  is  manifested 
that  the  contract  is  executory  merely,  it  will  be  so  construed. 

§  25.  Recitals.  The  recitals  or  preamble  contained  in  or 
prefixed  to  an  agreement  do  not  of  themselves  have  any  obli- 
gatory force,  but  they  may  be  referred  to  in  the  operative 
part  of  the  instrument  in  such  a  way  as  to  show  that  it  was  de- 
signed they  should  form  a  part  of  it;^  and  where  the  words  in 
the  operative  part  of  the  instrument  are  of  doubtful  meaning, 
the  recitals  preceding  the  same  may  be  used  as  a  test  to  discover 
the  intention  of  the  parties  and  fix  the  true  meaning  of  the 
words.  But  when  the  words  in  the  operative  part  are  clear 
and  unambiguous  they  cannot  be  controlled  by  the  recitals.* 

§  26.  Contracts  for  repurcliase.  Conveyances  of  land 
absolute  in  form  are  frequently  construed,  in  the  light  of  at- 
tendant circumstances,  as  mortgages  in  fact,  and  effect  is  given 
to  them  as  such.  The  questions  arising  under  such  convey- 
ances are  numerous,  and  decisions  construing  them  have  been 
multiplied  to  an  almost  indefinite  extent.  It  is  not  proposed 
in  this  connection  to  examine  the  operation  or  effect  of  such 
conveyances  except  as  regards  their  availability  as  contracts 
for  repurchase.     Contracts  made  contemporaneously  with  ab- 

iSo  held  in  Johnson  v.  Filson,  118   of  |600  in  hand  paid,  and  then  bound 
111.  219,  where  a  written  instrument    the  father  in  a  penal  sum  to  make  the 
from  a  fatlier  to    his    son    recited,    son,  by  the  time  mentioned,  a  gocd 
among  other  things,  that  "  I,  W.  F.,    and  sufficient  warranty  deed, 
of,  etc.,  have  this  day  bargained  and       ^Bortz  v.  Bortz,  48  Pa.  St.  382. 
do  grant,  bargain,  sell  and   confirm       ^  Trower  v.  Elder,  77  111.  452. 
unto  the  said,"  etc.,  naming  the  son       •'Walker  v.  Tucker,  70  111.  527. 
and  describing  the  land,  for  the  sum 


C0N8TKUCTION    OF    LAND   CONTKA.CTS.  145 

solute  conveyances  are  sometimes  strong  evidence  tending  to 
show  that  such  conveyances  are  intended  to  be  mortgages;  and 
the  same  is  true  of  stipuhitions  inserted  in  the  instrument  re- 
serving a  right  to  repurchase,  or  covenanting  to  reconvey.* 
But  there  is  no  positive  rule  that  the  covenant  to  reconvey  shall 
be  regarded  either  in  law  or  equit}'  as  a  defeasance.  The 
owner  of  lauds  may  be  willing  to  sell  at  the  price  agreed  upon, 
and  tiu'  puiciiaser  may  also  be  willing  to  give  the  vendor  the 
right  to  repurchase  ui)on  specified  terms;  and  where  it  appears 
that  the  parties  really  intend  an  absolute  sale,  and  a  contract 
allowing  the  vendor  to  repurchase,  such  intention  must  con- 
trol. Such  a  contract  is  not  opposed  to  public  policy,  nor  is  it 
in  any  sense  illegal.^ 

In  instruments  of  this  character  the  fact  that  there  is  no 
continuing  debt  is  a  strong  circumstance,  where  there  is  any 
doubt,  to  show  that  it  is  a  contract  for  repurchase.' 

AVhere  sales  are  made  conditionall}'",  or  with  a  reservation 
of  a  right  in  the  vendor  to  repurchase,  he  must  exercise  prompt- 
ness and  precision  on  his  part  in  the  assertion  of  his  right,  or 
it  will  be  lost,  especially  when  the  vendee  pays  a  fair  valuation 
for  the  property.*  If  no  time  is  fixed  or  expressed  in  which 
such  right  shall  be  exercised,  it  must  be  performed,  or  an  offer 
made  to  perform,  within  a  reasonable  time.^  A  long  delay  in 
offering  to  repurchase  may  be  excused  by  and  with  the  con- 
sent and  approbation  of  the  vendee;  but  such  assent  termi- 
nates with  his  death,  and  the  right  must  be  exercised  within  a 
reasonable  time  thereafter.^ 

A  mortgagor  and  a  mortgagee  may,  at  any  time  after  the 
creation  of  a  mortgage  and  before  foreclosure,  make  any  agree- 

1  Peterson  v.  Clark,  15  Johns,  may  exercise  his  right  and  realize 
(N.  Y.)  205;  Hauford  v.  Blessing,  80  the  profit;  should  it  depreciate  in 
III.  188.  value  or  be  injured  or  destroyed,  he 

2  Hanford  v.  Blessing,  80  III.  188 ;  may  decline  to  repurchase,  and  per- 
Henly  v.  Hotaling,  41  Cal.  23 ;  Glover  niit  the  loss  to  fall  exclusively  on  the 
V.  Payn,  19  Wend.  (N.  Y.)  518.  vendee.     Such  being  the  relative  sit- 

3  Phillips  V.  Ilulsizer,  20  N.  J.  Eq.  uation  of  the  parties  to  the  contract 
30S.  the  law  requires  j)romptness  on  the 

*The  reason  for  this  is  apparent,  part  of  the  vendor.     Beck  v.  Blue,  43 

There  is  no  obligation  on  the  part  of  Ala.  32;  4  Kent,  Com.  144. 
the    vendor  to  repurchase.     Should       ^  Beck  v.  Blue,  42  Ala,  32. 
tlic  property  appreciate  in  value,  he       ^Beck  v.  Blue,  42  Ala.  32. 
10 


146  COXTUACT    OF    SALE. 

iiient  concerning  the  estate  they  please,  and  the  mortgagee 
may  become  the  purchaser  of  the  equity  of  redemption.  All 
such  transactions,  however,  are  regarded  with  jealousy  b}'- 
courts  of  equit}^;  and  as  a  party  is  never  allowed  to  take  from 
his  debtor  by  any  form  of  contract  his  right  to  redeem  prop- 
erty pledged,  they  will  be  sustained  only  when  they  are  in  all 
respects  fair  and  supported  by  an  adequate  consideration. 
They  will  be  avoided  for  fraud,  actual  or  constructive,  or  for 
any  unconscionable  advantage  taken  by  the  mortgagee  in  pro- 
curing the  sale;  and  courts  will  examine  the  transaction  to  see 
that  it  is  a  fair  and  independent  proceeding,  entirely  uncon- 
nected with  the  original  contract  of  mortgage.^ 

§  27.  Bond  for  conveyance.  A  bond  for  title  is  not  distin- 
guishable in  its  ordinary  operation  and  effect  from  a  simple 
agreement  for  the  same  purpose,  notwithstanding  it  is  con- 
ditioned under  a  penalty.  The  imposition  of  a  penalty  gives 
only  a  security  for  the  performance  of  the  contract  according 
to  its  terms,  and  is  not  intended  as  an  option  to  the  obligor; 
nor  does  it  entitle  him  to  convey  or  pay  the  penalty.-  Like  a 
simple  contract,  it  is  evidence  only  of  an  agreement  of  the 
obligee  to  purchase  and  the  obligor  to  sell,  the  agreement  of 
one  part}'  being  a  consideration  for  that  of  the  other;  and  it  is 
not  material  that  the  obligation  of  one  part}"^  is  secured  by 
bond,  and  that  the  other  is  not  thus  secured.^ 

§  28.  The  description.  Probably  more  questions  arise  in 
the  interpretation  of  contracts  and  deeds  for  land  in  that  part 
technically  denominated  the  description  than  in  any  other  part 
of  the  instrument.  Uncertainty,  ambiguity  and  repugnance 
are  common  defects,  all  calling  for  a  construction  before  the 
instrument  can  be  given  effect.  In  the  west,  where  property 
can  usually  be  easily  and  accurately  described  by  the  well- 
known  terms  of  the  government  surveys  or  the  equally  famil- 
iar expressions  employed  in  the  platting  of  cities  and  towns, 

1  Odell  V.  Montross,  68  N.  Y.  499 ;  3  Nor  is  it  material  that,  when  the 
Locke  V.  Pahner,  26  Ala.  312;  Patter-  cause  comes  on  for  hearing,  the  pur- 
son  V.  Yeaton,  47  jMe.  306 ;  Trull  v.  cliasers  part  of  the  agreement  has 
Skinner,  17  Pick.  (Mass.)  213;  Mills  not  been  performed,  if  the  fulfillment 
V.  Mills,  26  Conn.  213;  Baugher  v.  is  tendered  and  can  be  secured  by 
Merryman,  32  Md.  185 ;  Hyndman  v.  the  same  decree  which  compels  spe- 
Hyndman,  19  Vt.  9.  cific    performance    by    the    vendor. 

2  Ewins  V.  Gordon,  49  X.  H.  444.  Ewins  v.  Gordon,  49  N.  H.  444. 


CONSTRUCTION    OK    LAND    (JONTRACTS. 


U7 


questions  of  insufficient  or  faulty  description  arc  less  frequent 
tlum  in  the  east;  yet  the  decisions  of  both  sections  are  harmo- 
nious in  (leclarin<i;  the  i^^cncral  rule  that  in  agreements  for  the 
sale  or  conveyance  of  land  the  property  is  sufficiently  identified 
if  so  described  that  by  proof  aliunde  the  description  may  be 
fitted  to  the  land.'  This  rule,  however,  cannot  be  made  to 
embrace  descriptions  which  do  not  properly  fall  within  it,  nor 
can  it  be  extended  by  implication.'- 


iPeck  V.  Williams,  10  N.  Y.  509; 
Baldwin  V.  Sluuinun,  43  N.  J.  L.  596; 
Baucuin  v.  George,  06  Ala.  259;  Hall 
V.  Davis,  36  N.  H.  569 ;  Hotchkiss  v. 
Barnes,  34  Conn.  27;  Farmer  v. 
Batts,  83  N.  C.  387;  Terry  v.  Berry, 
13  Nev.  514;  Cata  v.  Stewart,  28  Ark. 
146;  Clark  v.  Powers,  45  III.  283.  As, 
for  instance,  "my  Lenoir  lands." 
Thornburg  v.  Masten,  88  N.  C.  293. 
The  "  Fleming  farm  on  French 
creek,"  held  to  be  a  sufficiently  certain 
description.  Ross  v.  Baker,  72  Pa.  St, 
186.  "  Lot  8,  sec.  19,  4,  N.,  35,  E."  was 
held  not  uncertain  under  the  govern- 
ment system  of  surveys.  Richards  v. 
Snider,  11  Oreg.  197.  A  contract  of 
sale  of  land  described  as  "a  tract  of 
three  acres  of  land,  more  or  less,  sit- 
uate in  the  township  aforesaid,"  to- 
gether with  proof  that  the  purchaser 
entered  into  possession  of  a  certain 
tract  of  three  acres  under  the  con- 
tract, held,  in  ejectment,  to  be  suffi- 
cient to  take  the  case  out  of  the  stat- 
ute of  frauds.  Troup  v.  Troup,  87  Pa. 
St.  149.  A  description  of  property  as 
•'  a  steam-inill  and  distillery  situate 
in  the  county  of  Smith  and  state  of 
Tennessee,  near  the  village  of  Rome, 
in  civil  district  13,  on  the  banks  of 
the  Cumberland  river,  supposed  to 
contain  one  and  one-half  acres  of 
land,"  held  to  be  sufficient  under  the 
statute  of  frauds,  and  parol  evidence 
to  be  admissible  for  identification  of 
the  premises.  White  v.  Motle}',  4 
Baxter  (Tenn.),  544.  All  the  vendor's 
•  claim  or  title  to  property  bought  of 


A.  and  B.,  and  known  as  the  Gentle 
property,"  held  good  under  the  stat- 
ute of  frauds.  Smith  v.  Freeman,  75 
Ala.  285.  A  written  agreement  by  A. 
to  transfer  to  B.  a  lot  of  land  near 
Florence,  north  of  the  fair  grounds, 
containing  thirty-five  acres,  more  or 
less,  is  not  void  for  uncertainty,  it 
appearing  that  A.  owned  but  one 
such  lot  in  that  vicinity.  O'Neil  v, 
Seixas  (Ala.),  4  South.  Rep.  745.  "  A 
house  and  lot  of  land  situated  on 
Amity  street,  Lynn,  Mass.,"  was  held 
sufficient,  the  vendor  only  owning 
one  house  and  lot  of  land  on  the 
street.  Hurley  v.  Brown,  98  Mass. 
545.  But  specific  performance  has 
often  been  refused  of  contracts  con- 
taining no  more  specific  designation. 
See  Hammer  v.  McEldowney,  46  Pa. 
St.  334 ;  King  v.  Ruckman,  5  C.  E. 
Green  (N.  J.),  316.  Indeed,  the  case 
of  Hurley  v.  Brown  may  be  consid- 
ered as  stating  an  advanced  doctrine 
and  at  variance  with  well-established 
rules  of  construction. 

-Thus,  a  contract  for  the  sale  of 
land  described  as  "  sixt}'  acres  Coniida 
and  Cove  bottom,  also  ten  acres  hill- 
side woodland  adjoining  the  Mitchell 
tract,"  was  hekl  void  on  its  face  for 
uncertaintj'.  Meyer  v.  Mitchell,  75 
Ala.  475.  "  Forty  acres  off  the  Spring 
Fork  end  of  my  tract  of  one  hundred 
and  forty-seven  acres  on  Beech  Fork 
in  Calhoun  county  "  was  held  too  in- 
definite to  be  enforced.  Westfall  v, 
Cottrills,  24  W.  Va.  703.  "Twenty 
acres  of  laud,"  without  other  descrip- 


lis 


COXTliAUT    OF    SALE. 


In  construing  a  contract  or  conveyance,  the  description  in 
which  is  doubtful,  the  evidence  competent  to  be  considered  is 
the  language  of  the  deed  and  the  surrounding  circumstances 
at  the  time  of  its  execution,  including  the  situation  of  the  par- 
ties and  the  object  they  had  in  view;  and  the  practical  inter- 
pretation by  the  parties  themselves  is  entitled  to  great  if  not 
controlling  influence.^  But  this  rule  has  an  application  only 
when  there  is  doubt  as  to  its  true  meaning;  for,  where  its  mean- 
ing is  clear,  an  erroneous  construction  of  it  by  them  will  not 
control  its  effect.^ 

As  just  stated,  a  contract  cannot  be  extended  by  implica- 
tion ;  nor  can  it  be  so  extended  by  express  language  when,  from 
the  general  wording  of  the  instrument,  a  contrary  intent  is 


tion,  held  void  for  uncertainty. 
Palmer  v.  Albee,  50  Iowa,  429.  A 
contract  to  convey  "a  piece  of  land 
supposed  to  be  forty  acres"  is  too 
uncertain  for  a  decree,  and  too  in- 
definite to  permit  the  introduction  of 
parol  evidence  to  make  it  moi-e  cer- 
tain. Jo?ies  V.  Carver,  59  Tex.  293. 
An  agreement  to  sell  "one-half  acre 
of  land  adjoining  K.'s  lot  on  the  east 
and  running  due  west,"  it  has  been 
held,  does  not  describe  the  boundaries 
with  sufficient  certainty  to  satisfy 
the  statute  of  frauds ;  and  oral  evi- 
dence to  show  the  boundaries  agreed 
upon  is  inadmissible.  Sherer  v. 
Trowbridge,  Ido  Mass.  500.  A  mem- 
orandum which  described  the  land 
sold  as  a  "  lot  on  Eighteenth  street, 
50x180,  about  three  hundred  feet 
south  of  Herbert  street,"  was  held 
not  sufficient  to  satisfy  the  statute  of 
frauds.  Schroeder  v.  Taaffe,  11  Mo. 
App.  267.  An  agreement  to  convey 
"  my  land,  .  .  .  the  entire  tract, 
seven  hundred  and  twenty-eight 
acres,"  held  to  be  too  ambiguous  to 
be  enforced  in  equity.  Baruet  v. 
Nichols,  56  Miss.  622 ;  and  see  Thomp- 
son v.  Gordon,  72  Ala.  455;  Eggle- 
ston  V.  Wagner,  40  Midi.  610;  Jolin- 
son  V.  Granger,  51  Tex.  42;  Scarritt 
V.  M.  E.  Church,  7  Mo.  App.  174.    A 


description  of  land  as  "  lots  Nos.  1 
and  2  on  F  street,"  without  reference 
to  any  plan  by  which  the  premises 
could  be  identified,  held  not  to  be  suf- 
ficient memorandum  under  the  stat- 
ute of  frauds.  Clark  v.  Chamberlin, 
112  Mass.  19.  An  agreement  to  sell 
"  one-half  acre  of  land  adjoining  K.'s 
lot  on  the  east  and  running  due 
west  "  does  not  describe  the  bound- 
aries with  sufficient  certainty.  Sherer 
V.  Trowbridge,  135  Mass.  500.  A  con- 
tract for  the  sale  of  "two  and  one- 
half  acre  tract  of  land,  being  the  first 
half  of  the  five-acre  tract  along  by 
the  fence  just  back  of  the  Chicago 
Catholic  burying  ground,"  is  not 
specific  enough  to  satisfy  the  statute 
of  frauds.  Pierson  v.  Ballard,  32 
Minn.  263.  A  description  of  land  in 
an  agreement  to  convey  as  five  acres, 
lot  3,  section  23,  etc.,  there  being 
nothing  to  show  what  five  acres  are 
intended,  is  not  a  good  description, 
and  the  defect  cannot  be  supplied  by 
parol.  Nippolt  v.  Kammon  (Minn.), 
40  N.  W.  Rep.  266 ;  and  see  King  v. 
Ruckman,  5  C.  E.  Green  (N.  J.),  316; 
Hammer  v.  McEldowney,  46  Pa.  St. 
334. 

1  Chicago  V.  Sheldon,  9  Wall.  (U. 
S.)  50 ;  Fire  Ins.  Co.  v.  Doll,  35  Md.  b'J. 

-'  Fire  Ins.  Co.  v.  DoU,  35  Md.  89. 


CONSTRUBTION    OF    LAND    CONTRACTS.  149 

manifest  or  dcduciblc  under  tlie  application  of  recognized 
legal  rules.  Thus,  wliero  the  contract  specifically  describes 
the  lands  and  states  tiie  quantity,  it  has  been  held  that  the 
contract  cannot  be  extended  to  cover  other  lands  than  those 
thus  described,  although  it  contains  a  clause  that  the  purchase 
is  intended  to  be  of  all  the  lands  still  belonging  to  the  vendor.' 

The  general  rule  would  seem  to  be  that,  when  land  forms 
the  subject-matter  of  a  contract,  it  must  be  so  described  as  to 
leave  no  uncertainty  as  to  its  shape,  quantity  and  location; 
and  if  these  particulars  are  entirel}'  wanting,  or  can  only  be 
supplied  by  a  resort  to  parol  evidence,  the  memorandum  is 
insufficient  to  warrant  an  enforcement  of  the  contract  or  a  de- 
cree of  conveyance.  Where  a  sufficient  description  is  given, 
parol  evidence  may  be  resorted  to  in  order  to  fit  the  descrip- 
tion to  the  land ;  but  Avhere  the  description  is  insufficient  or 
vague  and  uncertain,  and  the  uncertainty  is  patent,  or  where 
there  is  no  description,  such  evidence  is  inadmissible.- 

§  2t).  Continued  —  Unlocated  land.  Xot  infrequently  con- 
tracts arc  made  for  the  sale  of  land  in  specific  quantities  but 
undesignated  location,  sometimes  taking  the  form  of  grants 
i7i  jjrcesoiii,  and  at  others  of  a  simple  contract  to  convey.  The 
exact  nature  of  such  a  contract  it  is  difficult  to  determine, 
whether  in  form  a  covenant  to  convey  or  a  present  grant.  In 
the  policy  of  the  land  system  of  the  federal  government, 
grants  of  this  nature  are  permitted,  the  grant  being  in  the 

iGibbsv.  Diekma,  102  U.  S.  (L.  ed.)  acres  instead  of  one  thousand  five 

177.     In   this  case  there  was  a  con-  hundred  and  sixty.     The  court  held 

tract  for  the  sale  of  certain   lands  that  the  clause  just  shown  was  evi- 

which    were    specifically    described,  dently  added  by  way  of  limitation,  so 

after  which  was  added  the  following  as  to  exclude  from  the  sale  any  of  the 

clause:    "This  purchase  is  intended  parcels  specifically  described  which 

to  be  of  all  the  lands  still  belonging  should  bo  found  to  have  been  previ- 

to  the  said  Holland  Harbor   Board,  ously    contracted    to    other  parties, 

the  same  being    one    thousand   five  And  see  Brunswick  Savings  lust.  v. 

hundred   and  sixty   acres,    more   or  Grossman,  76  Me.  577. 

less,  at  ninety  cents  per  acre.     If  it  2  Hamilton  v.  Harvey,  121  111.  469; 

shall  be  found  that  any  of  tiie  above-  Miller    v.    Campbell,    52    Ind.     125; 

described  lands  have  before  tliis  date  Hammer  v.  McEldowney,  46  Pa.  St. 

been  conveyed  to  other  parties,  such  334 ;  Jordan  v.  Fay,  40  Me.  130 ;  King 

lauds  shall   not  be  included  in  this  v.  Ruckman,  20  N.  J.  Eq.  316 ;  Lynea 

sale."     It  afterwards  appeared   that  v.  Hayden,  119  Mass.  482. 
the  Board  still  owned  five  thousand 


150  CONTKACT   OF   SALE. 

nature  of  a  ''float,"  which  does  not  attach  to  any  particular 
parcel  until  located;  but  upon  a  definite  location  the  title  to 
each  particular  parcel  is  held  to  be  as  complete  as  if  it  had 
been  granted  by  name,  number  or  location.^  The  application 
of  this  principle  to  private  grants  is,  however,  radically  op- 
posed to  many  of  the  best  known  and  most  firmly  established 
rules  of  law.  An  executory  contract  for  the  sale  of  a  specific 
quantity  to  be  taken  from  a  choice  of  designated  localities, 
the  respective  localities  being  themselves  definitely  established^ 
would  probably  be  enforced  upon  the  exercise  of  the  right  of 
selection  given.  If  in  form  a  deed  of  present  grant  it  would, 
of  course,  be  inoperative  to  convey  a  legal  title;  but  it  would 
be  doing  no  violence  to  established  rules  to  say  that  it 
"would  confer  an  equity  to  the  enumerated  quantity  of  land, 
depending  on  the  exercise  of  the  vendee's  right  of  selection.- 
But  a  contract  to  convey  a  stated  number  of  acres  in  a  certain 
county  or  state,  without  other  or  further  description,  would  be 
void  for  vagueness  and  uncertainty.'' 

§30.  Continued— History  of  title.  It  is  no  uncommon 
practice  to  insert  in  contracts  and  conveyances  a  mention  of 
some  incident  in  the  history  of  the  title,  as  that  the  property 
is  the  same  premises  conveyed  to  the  vendor  by  a  certain  per- 
son at  a  prior  date,  or  which  he  acquired  as  distributee  of  a 
certain  estate,  etc.  Such  descriptions  standing  by  themselves 
or  in  connection  with  other  and  less  particular  descriptions  are 
frequently  of  great  utility  in  definitely  locating  the  land  by 

iSee    9    Opinions    Att'y-Gen.   41;  vej"  "  one  hundred  and  sixty  acres  of 

R.  R.  Co.  V.  U.  S.  93  U.  S.  733.  land  in  any   one  of    the  following 

2  See  Dull  v.  Blum,  4  S.  W,   Rep.  counties  in   the  state  of  Missouri," 

(Tex.)  489.    In  this  case  a  grant  of  one  naming  them ;  held,  that  the  right  to 

hundred  acres  to  be  taken  in  a  rectan-  demand  a  conveyance  could  not  be 

guiar  . oral  out  of  any  of  the  four  cor-  enforced,  the  contract  in  reference 

ners  of  a  designated  tract  which  the  thereto    being    invalid  for    want  of 

grantee  might  select  was  denied  opei--  a  description.     But   see  Carlyon   v. 

ation  as  a  deed,    but  permitted  to  Eade,  48  Iowa,   707,    where  it   was 

stand  as  an  executory  contract  for  held  that  a  contract  by  A.  that  B. 

the  conveyance  of  the    enumerated  might  have  his  choice  of  whatever 

quantity  upon  the  vendee's  selecting  land   A.  might  have  in  a  specified 

same.     And  see  Carlyon  v.  Eade,  48  county  gave  B.  the  right  to  demand 

Iowa,  707.  and  receive  from   A.  a  list  of  A.'s 

'  Newman  v.  Perrill,  73  Ind.   153.  lands  from  which  to  make  the  selec- 

The  contract  in  this  case  was  to  con-  tion. 


CONSTKUCTKJX  UF  LAND  CONTRACTS.  15 1 

reference  to  extrinsic  facts;  and  like  descriptions  by  designa- 
tion, of  which  they  may  be  said  to  form  a  species,  are  effective 
to  pass  the  estate  of  the  grantor  in  all  the  land  that  can  be 
shown  to  fall  within  their  terms. 

But  if  there  exists  no  doubt  or  question  as  to  the  identity  or 
location  of  the  land  in  question,  which  is  described  with  abso- 
lute certainty  by  metes  and  bounds,  with  statement  of  quan- 
tity or  reference  to  visible  monuments,  the  mention  of  events 
in  the  history  of  the  title  is  of  comparativel}'^  little  moment. 
If  the  incidents  are  correctly  stated  they  may  be  regarded  as 
recitals  only;  and  if,  on  the  other  hand,  the  statements  create 
an  apparent  repugnancy,  they  will  not  be  permitted  to  have 
force  against  the  mention  of  metes,  bounds,  courses,  distances 
and  visible  monuments.  When  a  piece  of  land  is  so  described 
that  a  surveyor's  chain  can  be  stretched  along  its  boundaries 
with  absolute  certaint}'  as  to  each  course  and  distance,  a  trans- 
position of  dates  in  stating  previous  conveyances  constituting 
the  chain  of  title,  or  an  erroneous  mention  of  any  incident 
occurring  in  the  histor}'  of  its  devolution,  will  not  cloud  or 
affect  that  certainty,  nor  destroy  the  operative  force  of  a  con- 
veyance.' Ordinarily  references  are  made  to  prior  convey- 
ances, not  so  much  for  the  purpose  of  fixing  the  boundaries  as 
to  show  the  grantor's  chain  of  title,  and  in  construing  descrip- 
tions this  vie\v  is  usually  taken  by  the  courts. 

The  true  interpretation,  therefore,  of  recitals  of  this  char- 
acter seems  to  be  that  they  are  to  be  regarded  merely  as  de- 
scriptive of  the  thing  granted  and  not  of  the  quantity  of  the 
grantor's  interest.'- 

1  Sherwood  v.  Whiting,  8  Ail.  Rep.  that  the  latter  clause  should  not  be 
80;  Hastings  v.  Hastings,  110  Mass.  treated  as  anything  more  than  a 
280 ;  Dtacons  v.  Walker,  124  Mass.  09.  relerence  to  the  mortgages,  and  de- 

2  As  where  a  deed  containing  a  full  cree  for  further  and  more  pitrticular 
and  sufficiently  accurate  description  description.  Wilder  v.  Davenport's 
of  the  lauds  conveyed  then  proceeded  Estate. 

to  further  identify  them  as  being  the  In  the  foregoing  case,  which  was 
same  lauds  which  were  described  in  an  action  on  the  covenant  of  war- 
two  mortgages  therein  specified,  and  ranty,  it  was  contended  that  tho 
this  in  turn  was  followed  by  the  final  clause  in  the  description  above 
clause:  'Intending  to  convey  the  quoted  controlled  the  previous  de- 
same  lauds  and  no  other  whicli  scription  by  metes  and  bounds,  and 
passed  to  me  by  virtue  of  the  fore-  limited  the  amount  of  laud  couveyeJ 
closure  of   said  mortgages."    Held,  to  what  the  grantor  actually  owned; 


152  CONTRACT   OF   SALE. 

§  31.  Description  by  designation.  The  chief  requisite  of 
a  description  consists  in  the  identification  of  the  property,  and 
if  this  result  can  be  attained  so  as  to  indicate  the  property 
with  certainty  formality  is  immaterial.  Thus,  a  "  house  and 
lot "  or  "  one  house  and  lot,"  in  a  particular  locality,  would  be 
insufficient,  because  too  indefinite  on  the  face  of  the  instru- 
ment itself;  but  "my"  house  and  lot  imports  a  particular 
house  and  lot,  rendered  certain  by  the  description  that  it  is 
the  one  which  belongs  to  "me;"  and  where  the  instrument 
does  not  itself  show  that  the  vendor  had  more  than  one  house 
and  lot,  it  will  not  be  presumed  that  he  had  more  than  one. 
In  such  case  it  has  been  held  there  is  no  patent  ambiguity.  If 
it  be  shown  that  he  has  more  than  one,  it  must  be  by  extrinsic 
proof;  and  hence,  it  is  held,  the  case  would  then  be  one  of  latent 
ambiguity,  which  may  be  explained  by  similar  proof.^  This 
doctrine  has  in  some  cases  been  carried  to  extreme  lengths." 

A  description  by  designation,  used  in  connection  with  other 
descriptions  which  call  for  courses,  distances,  etc.,  will  in  some 
cases  overcome  such  other  descriptions  when  same  are  repug- 
nant to  or  inconsistent  with  the  designatory  description.  Thus, 
in  an  agreement  for  a  deed  the  land  was  first  described  by 
numbers  and  dimensions  and  then  as  the  property  known  as 
the  "  Cook  &  Glover  block."  The  plain  intent  seemed  to  be 
that  the  property  to  be  conveyed  was  a  certain  "  block,"  but 
the  parties  by  mistake  assumed  that  it  covered  only  one-half 
of  a  certain  lot  and  the  land  was  so  described,  whereas  it  oc- 
cupied two  and  one-half  feet  more  of  the  lot,  which,  if  the 

but  the  court  say :  "  It  is  hardly  sup-  held  sufficient.     Henly  v.  Wilson,  81 

posable  that  any  man  intends  to  con-  N,  C.  407.     "  My  Lenoir  lands  "  held 

vey  land  that  he  does  not  own.     It  good,  the  description  being  such  that 

would  therefore  be  introducing  com-  by  proof  aliunde  the  description  may 

l)lete  uncertainty  in  deeds  if,  after  be  fitted  to  the  land.     Thornburg  v. 

a  precise  description  by   metes   and  Matsen,  88  N.  C.  293.     An  agreement 

bounds,  without  exception  or  reserva-  as  follows:  "I  agree  to  make  good 

tion,  such  description  could  be  over-  titles  in  fee  to  my  forty  near  the  G. 

come  when   it  turned  out  that  the  lands  in  H.   county  to  A.  B.,"  and 

grantor  did  not  own  all  he  described,  stating  the  receipt  of  a  consideration, 

by  adding  a  clause  as  to  his  intent."  and  signed,  held  to  contain  a  suffi- 

i  Carson  v.  Ray,  7  Jones'  L.  (N.  C.)  cient  description  of  the  land  to  be 

609.  sold  to  satisfy  the  statute.    Lente  v. 

2  All  "  my  "  lands  on  both  sides  of  Clarke,  23  Fla.  515. 
Har  river,  has,  under  the  rule,  been 


COXSTRUCTIOX    OF    LAND    CONTRACTS.  153 

description  by  numbers  and  dimensions  were  to  prevail,  would 
leave  that  part  unconvcyed.  It  was  therefore  held  that  the 
words  "Cook  &  Glover  block"  were  the  controlling  and  de- 
scriptive words;  that  in  effect  it  was  the  "block"  which  was 
conveyed;  and  that,  as  the  same  was  a  fixed  and  permanent 
monument,  any  words  of  description  repugnant  thereto  should 
be  rejected.' 

A  description  by  some  well-known  or  commonly-accepted 
name  has  frequently  been  held  to  answer  the  requirements  of 
the  statute  and  to  permit  of  specific  performance  of  the  con- 
tract.- 

§  32.  The  inediiim  of  payment.  Where  land  is  sold  for  a 
money  consideration  the  medium  of  payment  is  ordinarily  ex- 
pressed in  "dollars,"  with  the  not  infrequent  addition,  "lawful 
money  of  the  United  States."  It  would  seem  that  such  a  state- 
ment would  leave  little  or  no  room  for  contention  or  admit  of 
questions  of  construction ;  yet  there  exists  a  large  body  of  case 
law  which  has  arisen  in  the  construction  of  the  federal  consti- 
tution and  the  various  acts  of  congress  and  the  state  legisla- 
tures in  regard  to  what  constitutes  a  legal  tender  in  payment 
of  obligations  founded  on  contracts  made  in  time  of  peace  as 
well  as  in  time  of  war. 

The  federal  constitution  *  provides  that  no  state  shall  "  make 
anything  but  gold  and  silver  coin  a  legal  tender  for  the  pay- 
ment of  debts;"  but  congress,  during  the  earlier  years  of  the 
civil  war,  made  several  laws  known  as  the  legal-tender  acts, 
whereby  United  States  treasury  notes  were  declared  to  be  a 
legal  tender  for  the  payment  of  all  private  debts.  The  con- 
stitutionality of  these  acts,  though  much  doubted  at  the  time, 
was  finally  aflBrraed  by  the  supreme  court.*  To  avoid  the 
depreciation  in  value  which  at  different  times  has  attended  the 

1  Lyman  v.  Gedney,  114  111.  388.         frauds.     Smith  v.  Freeman,  75  Ala. 

2  A  writing  describing  the  property    285. 

sold    as   "Silver    Lake    Place,   near  "Art.  L§10. 

Washington,  Kentucky,  containing  ^  By  virtue  of  the  paramount  right 
fifty-two  acres,"  ]ield  sulticicnt  to  of  congress,  and  upon  the  ground 
satisfy  tlie  requirements  of  tlie  stat-  that  the  constitutional  inhibition  was 
ute.  Winn  v.  Henry,  84  Ky.  48.  So  directeil  only  to  the  states  and  not  to 
a  bond  expressing  as  its  consideration  the  federal  government.  See  Legal- 
all  the  vendor's  "title  or  claim  to  tender  Cases,  110  U.  S.  421 ;  and,  also, 
property  bought  of  A.  and  B.,  and  George  v.  Concord,  45  N.  H.  434; 
known  as  the  Gentle  property,"  Black  v.  Lusk,  69  111.  70;  Verges  v. 
held    good    under     the     statute     of  Gibony,  38  Mo.  458. 


15 J:  CONTRACT   OF   SALE. 

United  States  treasury  notes,  parties  frequently  make  their 
contracts  payable  in  "gold  coin."  The  earlier  cases  Avould 
seem  to  hold  that  such  contracts  amounted  to  nothing  more 
than  obligations  to  pay  the.  nominal  value  in  any  money  that 
Avas  a  legal  tender;'  but  later  cases  have  established  the  doc- 
trine that  a  contract  to  pay  in  a  particular  kind  of  coin  may 
be  spcciiically  enforced.-  In  the  rendition  of  such  decisions  it 
Avould  seem  that  it  is  not  on  the  basis  of  a  difference  in  the 
values  of  money  that  the  courts  Avill  enforce  a  contract  or  ren- 
der a  judgment  for  a  specific  kind,  for  the  law  will  not  recog- 
nize any  difference  in  value  between  one  kind  of  money  which 
is  a  legal  tender  and  any  other  kind  which  possesses  the  same 
character;^  but  it  is  upon  the  ground  that  the  parties  have 
specifically  contracted  (just  as  they  might  have  contracted  for 
payment  in  any  other  commodity)  for  pa}' ment  in  a  specific 
thing;  and  hence  the  obligor  is  bound  to  tender  that  specific 
thing  —  gold  or  silver  coin,  as  the  case  may  be  —  precisely  as  he 
would  be  bound  to  tender  a  specific  quantity  or  quality  of  any 
other  commodity.* 

A  covenant  to  pay  in  "lawful  money,"  or  in  "dollars,"  is  in 
legal  effect  yjayable  in  whatever  the  laws  of  the  United  States 
declare  to  be  a  legal  tender,' 

An  interesting  question  arises  when  the  contract  is  to  pay 
the  purchase  price  in  some  commodity  other  than  money,  and 
the  decisions  upon  the  subject  seem  to  be  conflicting.  The 
question  usually  arises  when  an  attempt  is  made  to  pay,  or  to 
demand  pa3'ment,  in  money  instead  of  the  specific  articles 
contracted  for.  There  are  cases  which  adopt  the  theory  that 
provisions  of  this  character  in  regard  to  the  mode  of  payment 
are  inserted  only  for  the  benefit  of  the  debtor,  and  that  they 
give  to  him  the  privilege  to  pay  either  in  money  or  the  articles 
specified,  as  he  may  elect ;  but  the  better  reason,  as  well  as  the 
volume  of  authority,  would  seem  to  indicate  a  contrary  rule. 
The  decisions  which  support  the  latter  principle  proceed  upon 

1  Appel  V,  "VValtmau,  38  Mo.  194 ;  3  Wells,  etc.  v.  Van  Sickle,  6  Nev. 
Laughlin  v.  Harvey,  53  Pa.  St.  9;  45;  Reese  v.  Stearns,  29  Cal.  273; 
Brown  v.  Welch,  26  Ind.  116.  Bank  v.  Burton,  27  Ind.  426. 


2Whitaker  v.  Dyer,  56  Ga.  380 
Chesapeake  v.  Swain,  29  Md.  483 
Ins.  Co.  V.  Thomas,  104  Mass.  192 
Kellogg  V.  Sweeney,  40  N.  Y.  291 
Bronson  v,  Rodes,  7  Wall.  (U.  S.)  229 


*  Wells,  etc.  T.  Van  Sickle,  6  Nev. 
45 ;  Bank  v.  Van  Vleck,  49  Barb.  (N. 
Y.)  508. 

5  Miller  v.  Lacey,  33  Tex.  351. 


CONSTRLXTIoN    t>F    LAND   CONTRACTS.  155 

the  theory  that,  when  a  contract  expressly  provides  that  pay- 
ment shall  be  made  in  a  specific  article  at  a  specified  price,  to 
permit  the  parties  to  do  otherwise  is  to  insert  into  the  contract 
provisions  which  they  have  not  made.  The  mere  fact  that 
such  a  contract  specifies  a  certain  number  of  dollars  as  the 
consideration  docs  not  necessarily  imply  that  the  vendor  was 
willing  to  sell  his  property  for  that  amount  in  money;  for  it 
ma}'  be  the  sum  was  only  fixed  in  view  of  the  other  provision 
for  payment  in  a  specific  article  at  a  specified  price,  and  that 
mode  of  payment  may  have  been  the  very  reason  that  induced 
the  vendor  to  make  it. 

Again,  the  rule  first  stated  being  devoid  of  mutuality  is  in- 
trinsically unjust.  Thus,  if  the  value  of  the  article  in  which  pay- 
ment is  to  be  made  falls  below  the  specified  price,  all  the  cases 
hold  that  the  debtor  may  still  pay  in  that  article  at  that  price. 
But  if  the  value  rises  above  that  price,  to  say  that  he  may 
elect  to  pay  in  mone}^  is  to  say  that  the  vendor  must  lose  by 
the  fall  of  the  value  of  the  article  he  contracts  for,  but  cannot 
gain  by  the  rise.' 

§  33.  Conditions  in  avoidance.  A  familiar  provision  in 
agreements  for  sale  is  that  where,  in  the  event  of  failure  on 
the  part  of  the  vendee  to  comply  with  the  terms  and  condi- 
tions thereof,  the  vendor  is  to  be  released  from  all  obligations 
to  convey  the  bargained  property,  the  vendee  to  forfeit  all 
right  thereto,  and  the  agreement  to  be  void.  This  clause  is 
now  always  construed  to  give  the  vendor  an  option,  on  the 
happening  of  the  contingency,  either  to  avoid  the  agreement 
or  to  enforce  it.-     The  vendee,  however,  cannot  set  up  his  own 

1  See  Wilson  v.  George,  10  N.  H.  the  court  held  that  the  vendor  was 
445 ;  Cole  v.  Ross,  9  B.  Mon.  (Ky.)  entitled  to  the  wlieat,  or  in  default 
893.  In  Starr  v.  Light,  22  Wis.  433,  thereof  he  might  recover  its  actual 
the  plaintiff  sold  land  for  which  the  value  at  the  time  specified  for  its  de- 
defendant  agreed  to  pay  in  niercliant-  livery,  and  that  the  vendee  had  no 
able  wheat  of  a  certain  quality,  the  riglit  to  paj'  in  money  instead  of 
price  to  be  seventy-live  cents  per  wlieat  the  amount  of  tlie  purchase 
bushel,  and  the  wheat  to  be  deliv-  price.  And  see,  also.  Wells  v.  Van 
ered  at  certain  times  and  quantities.  Sickle,  6  Nev,  45 ;  Bank  v.  Van  VIeck, 
Before  the  time  of  delivery  wheat  49  Barb.  (N.  Y.)  508. 
became  worth  much  more  than  sev-  ^wilcoxon  v.  Stitt,  65  Cal.  596; 
enty-five  cents  per  bushel.  The  de-  Canfield  v.  Westcott,  5  Cow.  (N.  Y.) 
fendant  claimed  the  right  to  pay  in  270. 
money  the  consideration  named ;  but 


156  CON TK ACT   OF   SALE. 

neglect  as  avoiding  the  contract,  even  thongli  tlie  terms  are 
express  that  the  contract  shall  be  void;  for  the}'  are  only  held 
to  mean  that  the  contract  shall  be  void  at  the  election  of  the 
vendor,  for  whose  benefit  the  provision  is  inserted.^ 

Conditions  are  ordinarily  raised  by  way  of  proviso;  but  while 
the  words  "provided  that"  and  "provided  also"  are  compe- 
tent to  create  conditions,  and  are  usually  so  construed,  they 
do  not  always  have  that  effect.  Whether  there  is  a  condition, 
or  whether  it  be  precedent  or  subsequent,  is  to  be  determined 
from  the  intent  of  the  parties  as  indicated  from  the  whole  lan- 
guage used  and  the  nature  of  the  act  required.- 

§  31.  Time  of  performance.  The  subject  of  time  as  a  con- 
stituent element  of  a  contract  has  already  been  considered,  and 
the  general  rule  stated  that,  where  no  time  is  mentioned  in  a 
contract  for  the  performance  of  its  conditions,  and  it  cannot 
be  gathered  from  the  language  employed  w^hat  was  the  inten- 
tion in  this  respect,  the  law  will  imply  a  reasonable  time,  and 
that  what  is  a  reasonable  time  will  depend  upon  the  peculiar 
circumstances  of  the  case.  This  rule,  while  of  general  appli- 
cation, is  particularly  adapted  to  those  agreements  w^hcreby  a 
party  undertakes  to  do  some  particular  act  the  performance  of 
■which  depends  entirely  upon  himself,  and  the  contract  is  silent 
as  to  the  time  in  which  it  should  be  done.  In  such  cases  the 
law",  without  reference  to  extraordinary  circumstances,  will  im- 
ply that  it  shall  be  performed  within  a  reasonable  time.  Thus, 
■where  a  party  has  obligated  himself  to  pay  a  given  sum  of 
money  by  a  future  day,  which  is  fixed  as  the  time  for  the  full 
performance,  and  it  is  agreed  that  the  sum  to  be  paid  may  be 
increased  or  diminished  by  the  performance  of  another  act  left 
to  the  option  of  the  parties,  the  law"  will  require  either  party, 
or  the  party  holding  the  option  if  there  be  only  one,  to  exer- 
cise such  option  and  perform  such  act  before  full  payment  of 
the  sum  named  is  made;  and  after  full  payment  the  party  will 
be  held  to  have  waived  his  right  to  do  the  act  entitling  him  to 
a  further  sum  or  to  a  diminution,  as  the  case  may  be.^ 

1  Mason  v.  Caldwell,  5  Gilm.  (111.)  3  As,  where  the  owner  of  a  farm  sup- 

196;  Cartwright  v.  Gardner,  5  Gush,  posed  to  contain  four  thousand  four 

(Mass.)  281.  hundred  and  forty-one  acres  sold  the 

2Schwoerer  v.    Market    Ass'n,    99  same  at  a  stipulated  sum  per  acre, 

Mass.  285.  the  purchase  money  to  be  paid  for  in 


C0N8TEU0TI0N   OF    LAND   CONTRACTS,  157 

§  35.  Computation  of  time.  AYliere  a  specified  number  of 
days  is  provided  for  the  delivery  of  an  abstract,  an  examina- 
tion of  the  title,  the  payment  of  money  or  the  performance  of 
any  other  particular  act  or  duty,  and  the  time  is  to  be  com- 
puted from  a  particular  day  or  the  happcninfj  of  a  particular 
event,  such  day  so  specified,  or  the  day  of  the  happening  of 
such  event,  is  to  be  excluded  from  the  computation;  for  the 
law  rejects  fi'actions  of  a  tlay,  and  an  act  done  in  the  compass 
of  it  is  not  referable  to  one  portion  of  the  day  more  than 
another,  so  that  the  act  is  not  considered  to  be  passed  and 
done  with  until  the  day  has  passed.  The  general  rule,  there- 
fore, is  to  exclude  the  first  and  include  the  last  day  of  the 
limit,  yet  this  rule  has  many  exceptions  and  is  not  to  be  re- 
garded as  fixed  or  unyielding;  and  in  considering  whether, 
upon  a  contract  to  do  an  act  or  enter  into  an  engagement  at 
or  for  a  definite  time  from  a  certain  date,  the  time  is  to  be 
reckoned  exclusively  or  inclusively  of  the  last  day,  must  in  each 
case  depend  largel^'^  upon  its  own  circumstances,  the  relative 
situation  of  the  parties  and  the  subject-matter. 

Where  the  com|)Utation  is  made  in  months,  a  calendar 
month  is  understood,  unless  it  appears  from  the  general  con- 
text of  the  contract  that  a  lunar  month  was  intended. 

§  36.  Assignment  of  contract  for  security.  The  assign- 
ment of  a  contract  for  the  purchase  of  land  by  the  vendee 
therein  named  as  a  security  for  a  debt  due  the  assignee  is  in 
equity  a  mortgage,  and,  being  of  an  interest  in  real  estate, 
must  be  governed  by  the  rules  which  are  applicable  to  a  mort- 
gage of  the  legal  estate.^  The  assignee  has  a  right  to  fore- 
instalments  at  times  fixed  by  the  date  of  the  last  payment  the  vendor 
contract.  It  was  further  pi'ovided  in  had  a  survey  made  and  brought  suit 
the  contract  that  eitlier  party  might,  against  the  purchaser  for  an  excess 
at  his  own  expense,  survey  the  land  shown  by  the  survey.  Held,  that  he 
if  he  saw  lit,  to  ascertain  tlie  number  could  not  recover,  the  survey  after 
of  acres,  and  if  such  survey  showed  payment  of  the  last  instalment  being 
the  land  to  contain  more  acres  than  too  late.  Hamilton  v.  Scully,  118  111. 
the  parties  supposed,  the  purchaser    192. 

should  pay  the  difTerence,  and  if  it  '  Brockway  v.  Wells,  1  Paige  (N. 
contained  less  the  amount  of  tliedefi-  Y.)  G17;  Alderson  v.  Ames,  6  Md.  52; 
cit  should  bo  deducted  from  tiie  pur-  Baker  v.  Bishop  Hill  Colony,  45  111. 
chase  money  or  credited  upon  the  2G4;  Bull  v.  Shepard,  7  Wis.  449; 
notes  evidencing  tiie  deferred  pay-  Christy  v.  Dana,  34  Cal.  548. 
meuts.     Some  seven  vears  after  tiio 


158  CONTRACT    OF    SALE. 

close  upon  condition  broken,  and  the  assignor  the  correspond- 
inff  rio-ht  to  redeem.^ 

^  And  while,  on  a  bill  to  redeem,  tion,  he  may  be  compelled  to  pay 

the  mortgagor  generally  pays  costs,  costs.     Brock  way  v.  Wells,  1  Paige 

yet  if,  on  application  before  suit,  the  (N.  Y.),  617. 
mortgagee  refuses  to  allow  redemp- 


VALIDITY    OF    LAND    C0XTKACT8.  159 


CHAPTER  V. 

VALIDITY  OF  LAND  CONTRACTS.. 

Art.    I.    Generally  Considered, 

Art.  II.    As  Affected  by  the  Statute  of  Frauds. 

Akt.  I.     Generally  Considered. 


^  1.     Preliminary  remarks.  I  §  5.     Agreements  void  in  part. 

2.  Executed  contracts,  I      6.     Sunday  contracts. 

3.  Agreements  prohibited  by  stat- 

ute. 

4.  Agreements  against  public  pol- 

icy. 


7.  Agreements  to  convey  by  will. 

8.  Contracts  procured  by  fraud. 

9.  Ante-nuptial  contracts. 
10.  Post-nuptial  contracts. 


§  1.  Preliminary  remarks.  The  subject  of  this  chapter  is 
so  intimately  connected  with  other  branches  of  the  law  gov- 
erning the  relation  of  vendor  and  purchaser,  and  with  the 
rights  and  remedies  growing  out  of  such  relation,  that  only  its 
general  features  can  be  shown  without  repeating  what  can  be 
more  advantageously  treated  in  other  parts  of  the  work  and 
in  connection  with  collateral  topics  which  serve  to  illustrate 
the  special  phases  of  invalidity.  Fraud,  deceit,  circumvention, 
misrepresentation,  etc.,  are  matters  which  go  to  the  validity 
or  invalidity  of  a  contract,  but  these  matters  are  best  shown 
in  connection  with  the  remedies  which  are  founded  upon 
them. 

Contracts  invalid  ^^tf?*  se  are  few  in  number  and  limited  in 
character;  on  the  other  hand,  contracts  void  at  the  election  of 
one  or  both  of  the  parties  are  very  numerous  and  have  a  wide 
range  on  which  to  predicate  invalidity.  Contracts  made  in 
contravention  of  positive  statute,  or  such  as  injuriously  affect 
public  morals,  or  are  opposed  to  the  spirit  and  policy  of  the 
laws,  are  for  that  reason  void  and  incapable  of  enforcement  if 
executory,  or  of  rescission  if  executed;  but  contracts  which 
derive  their  invaliditv  from  some  of  the  in^jredients  entering 
into  the  same,  and  which  do  not  come  strictly  within  the  legal 
definitions  of  the  class  of  contracts  first  mentioned,  are  avoided 
only  by  some  act  of  the  parties  indicating  disaffirmance. 


IGO  CONTRACT   OF   SALE. 

§  2.  Executed  contracts.  An  executed  contract,  though 
tainted  with  fraud,  is  nevertheless  binding  upon  the  parties,^ 
and  will  not  be  disturbed  on  the  ground  that  it  is  contrary  to 
public  policy; -nor  for  want  of  consideration;'  nor  will  the 
court  under  such  circumstances  inquire  into  the  legality  of  the 
consideration.^  These  principles  have  always  been  strictly 
enforced  in  all  transactions  between  parties  resting  under  no 
disability  or  laboring  under  no  incapacity.  Hence,  an  exe- 
cuted contract  for  the  sale  of  land  based  upon  illicit  sexual 
commerce  cannot  be  set  aside  at  the  instance  of  the  grantor 
or  his  heirs;'"'  nor  will  the  fact  that  the  property  is  to  be  used 
for  an  immoral  purpose  impair  a  deed  for  the  same.®  So,  also, 
where  title  was  acquired  as  the  result  of  a  bet,^  the  court  re- 
fused to  interfere,  holding  that  it  is  a  universal  principle  both 
at  law  and  in  equity,  that,  where  an  agreement  is  founded 
upon  a  consideration  illegal,  immoral  or  against  public  policy, 
a  court  will  leave  the  parties  where  it  finds  them.  If  executed, 
courts  will  not  rescind  it;  if  executory,  they  will  not  aid  in  its 
execution.^  A  deed  of  land  made  in  consideration  of  the  com- 
position of  a  felony  cannot  be  avoided  by  the  grantor.^ 

§  3.  Agreements  prohibited  by  statute.  A  contract  which 
is  forbidden  by  statute  is  incapable  of  enforcement  in  any 
court,'"  even  though  the  statute  may  have  been  repealed  after 
such  contract  was  raade.^^  This  is  the  general  rule;  and  it  is  a 
further  principle  in  connection  therewith,  that  where  a  statute 

1  Noble  V.  Noble,  26  Ark.  317 ;  Ager  Crowder  v.  Reed,  80  Ind.  1 ;  Cushwa 
V.  Duncan,  50  Cal.  325;  Setter  v.  v.  Cuslnva,  5  Md.  44 ;  King  v.  King, 
Alvey,  15  Kan.  157;  Clark  v.  Colbert,    61  Ala.  479. 

67  Ala.  92;  White  v.  Hunter,  23  N.  9  Worcester  v.  Eaton,  11  Mass.  368. 

H.  128.  But  a  deed  given  to  procure  a  release 

2  Levet  V.  Creditors,  22  La.  Ann.  from  imprisonment  on  legal  process 
105;  Meriwether  v.  Smith,  44  Ga.  regular  in  its  form,  in  a  suit  insti- 
541 ;  Marksbury  v.  Taylor,  10  Bush  tuted  maliciously  and  without  prob- 
(Ky.),  519.  able  cause,  may  be  avoided  for  duress. 

3  Mercer  v.  Mercer,  29  Iowa,  557;  Watkins  v.  Baird,  6  Mass.  506. 
Beauchamp  v.  Comfort,  42  Miss.  94.  lOGillilaud  v.  Phillips,  1   S.  C.  152; 

*  Kerr    v.    Birnie,    25    Ark.    225 ;  Fowler  v.  Scully,  72  Pa.  St.  456. 

Thomas  v.  Cronise,  16  Ohio,  54.  "  Gilliland   v.  Phillips,  1   S.  C.  152. 

5  Marksbury  v.  Taylor,  10  Bush  But  if  the  parties  renew  tlie  contract 
(Ky.),  519.  after  the  repeal  it  may  then  become 

6  Sprague  v.  Rooney,  82  Mo.  493.        valid.     CaiT  v.   Bank,  29  La.  Ann. 
T  Thomas  v.  Cronise,  16  Ohio,  54.        258. 

8  See  At  wood  v.  Fish,  101  Mass.  363 ; 


VALIDITY    OF    LAND    CONTRACTS.  1^1 

prohibits  a  transaction,  allliough  without  in  terms  dcchirin<^  it 
void,  it  is  void  notwithstanding  if  done  in  violation  of  the 
statute'  The  effect  of  tlic  ])rohibition  is  to  render  the  pro- 
hibited dealings  void.- 

Thc  subject  of  this  section  finds  many  examples  in  the  law 
of  vendor  and  purchaser  where  real  property  is  sold  in  connec- 
tion with  other  matters;  as  where  a  professial  man  sells  his 
property  and  practice  and  at  the  same  time  enters  into  stipu- 
lations restraining  his  right  to  further  pursue  his  calling. 
There  can  be  no  doubt,  however,  but  that  parties  may  maUe 
a  valid  agreement  in  restraint  of  trade,  where  the  operation  of 
the  agreement  is  partial  and  limited  under  reasonable  condi- 
tions, and  where  it  is  supported  by  a  valuable  consideration. 
Such  a  contract  may  be  enforced  b}'  an  action  at  law  for  the 
recovery  of  damages  for  its  breach,  and  may  be  upheld  in 
equity  by  a  decree  requiring  it  to  be  specifically  performed, 
and  an  injunction  will  be  granted  to  restrain  its  violation.' 

Agreements  to  convc}'^  land  will  not  be  sustained  where  by 
law  one  or  both  of  the  parties  have  no  capacity  to  consummate 
the  agreement,  or  where  an  express  prohibition  exists  of  the 
right  to  acquire  and  hold  for  any  except  a  specific  purpose, 
and  such  specific  purpose  is  not  contemplated  b\'  the  proposed 
sale.* 

•Watrous  v.   Blair,   32  Iowa,  58;  its,  it  was  held  that  this  agi-eement. 

Swords  V.  Owen,  43  How.  Pr.  (N.  Y.)  being  a  part  of  the  inducement  to 

167.  the   purchaser,    was    made    upon    a 

2  Swords  V.  Owen,  43  How.  Pr.  valuable  consideration,  though  the 
(N.  Y.)  167;  Dillon  v.  Allen,  46  Iowa,  agreement  did  not  enhance  the  price 
299.  The  distinction  in  some  of  tlie  paid  for  the  land.  Peirce  v.  Wood- 
old  cases  between  mulam  prohibitum  ward,  6  Pick.  (Mass.)  206. 
and  malum  in  se  has  long  since  been  *Thus,  an  agreement  to  give  a  rail- 
exploded,  and  the  rule  is  now  well  es-  road  company  an  interest  in  certain 
tablished  that  no  agreement  to  do  an  lands  or  town  lots  provided  it  would 
act  forbidden  by  statute  or  to  omit  locate  its  station  at  a  certain  specifi'd 
to  do  an  act  enjoined  by  statute  is  i)Iace  is  void,  for  the  reason  tliat  a 
binding.  Penn  v.  Bornman,  102  111.  railroad  company  has  no  authority 
523.  to  acquire  land  for  purposes  of  specu- 

3Cobbs  T.   Niblo,  6  111.  App,   60.  lation  under  a  grant  of  power  to  nc- 

Where  the  defendant  sold  the  plaint-  quire  and  hold  sufficient  land  for  the 

iff  a  piece  of   land  and  a  grocery  construction  of  its  road,  erection  of 

store,  and  made  at  the  same  time  a  necessary  building.'',  etc.     Pacific  R. 

verbal  agreement  not  to  carry  on  the  R.  Co.  v.  Seely,  45  Mo.  212. 
same  business  within  prescribed  li-u- 
11 


1G2  CONTRACT   OF    SALE. 

As  a  general  rule,  a  penalty  prescribed  by  statute  for  the 
doing  of  an  act  implies  a  prohibition  which  will  render  the  act 
void,  yet  this  is  not  always  so;  and  in  every  instance  courts 
will  look  to  the  language  and  subject-matter  of  the  statute, 
the  wrong  or  evil  which  it  seeks  to  remedy  or  prevent,  and  the 
purpose  sought  to  be  accomplished  by  it.  If  from  all  these  it 
is  manifest  that  it  was  not  intended  to  render  the  prohibitory 
act  void,  the  courts  will  so  held  and  construe  the  statute  ac- 
cordingly.^ Applying  this  rule  it  has  been  held  that  a  statute 
imposing  a  penalty  upon  any  person  who  shall  sell  or  lease  any 
lot  in  any  town,  city  or  addition  thereto  until  the  plat  thereof 
has  been  duly  acknowledged  and  recorded  does  not  operate  as 
a  prohibition  upon  the  sale  itself,  but  only  imposes  a  penalty 
upon  the  seller  and  hence  the  purchase  of  such  a  lot,  the  plat 
of  which  is  not  recorded,  is  not  rendered  invalid  by  the  enact- 
ment; -  and  further,  that  it  does  not  render  void  a  note  given 
for  the  purchase  money  of  lots  so  sold.^ 

§  4r.  Agreements  against  pnblic  policy.  Where  both  par- 
ties to  a  contract,  void  as  against  public  polic}'-,  are  equalh'  at 
fault,  the  law  will  leave  them  as  it  finds  them.  If  the  con- 
tract be  still  executory,  it  will  not  enforce  it  nor  awai-d  dam- 
ages for  its  breach.  If  already  executed  it  will  not  restore  the 
price  paid  nor  the  property  conveyed.^  If  either  party  has 
obtained  an  advantage  under  it  he  will  be  permitted  to  retain 
it,  and  no  subsequent  acts  of  the  parties  will  have  the  effect 
to  ratify  or  confirm  the  contract,  or  estop  them  from  asserting 
its  invalidit3\^ 

1  Pangborn  v.  Westlake,  36  Iowa,  parties  iutcrested  in  the  town  site, 

546.  nor  one  claiming  under  them,  could 

-  Watrous  v.  Blair,  33  Iowa,  58.  avoid  the  deed  or  recover  the  land, 

3  Pangborn  v.  Westlake,  3G  Iowa,        ^  As  where  plaintiff  and  defendant 

546.  agreed  in  writing  that  on  a  partition 

*  Setter  V.  Alvey,  15  Kan.  157.  In  sale  of  certain  real  estate,  of  three- 
this  case  a  town  company,  the  occu-  sevenths  of  which  the  defendant  was 
pants,  and  all  interested  in  the  town  owner  as  trustee  for  infants,  the  de- 
site,  made  a  contract  with  a  county  fendant  would  not  bid,  and  that,  if 
to  deed  it  certain  lots  on  the  town  the  plaintiff  should  become  the  pur- 
site,  providing  the  county  seat  was  chaser,  plaintiff  should  pay  four- 
located  at  the  town,  and  afterward  sevenths  and  defendant  three- 
the  county  seat  was  so  located  and  sevenths  of  the  purcliase  money,  and 
the  lots  deeded ;  held,  that  neither  the  that  the  property  should  be  divided 
town  company,   the  occupants,  the  between  them  on  a  line  agreed  upon, 


VALIDITY    OF    LAND    CONTRACTS.  103 

Agreements  which  contravcno  the  spirit  and  policy  of  the 
laws  by  an  attempt  to  evade  their  effect  are  also  incapable  of 
enforcement.^ 

To  make  a  contract  unlawful  as  being  a^irainst  public  policy 
and  law  it  must  be  manifestly  and  directly  so;  and  it  is  not 
enough  that  the  contract  is  connected  with  some  violation  of 
the  law,  however  remotely  or  indirectly,'-  The  illegality  must 
form  a  part  of  the  consideration,  or  in  some  way  furnish  the 
motive  for  the  contract.  Thus,  a  contract  for  the  sale  of  land 
depending  on  the  result  of  an  election,  on  the  question  of  a 
|>ark  in  the  locality,  in  a  certain  wa}',  as  a  condition  precedent 
to  its  taking  effect,  such  result  being  an  essential  part  of  the 
consideration,  is  void  upon  grounds  of  public  policy.^ 

The  rule  that  contracts  which  contravene  public  policy  and 
the  law  are  void,  and  that  courts  will  never  lend  their  aid  to 
enforce  them,  has  been  held  to  apply  where  the  intention  of 
one  of  the  parties  is  to  enable  the  other  to  violate  the  law;* 
yet,  in  transactions  relating  to  the  sale  of  land,  this  rule  must 
be  understood  as  qualified,  to  some  extent  at  least,  by  the  rule 
last  stated,  and  a  contract  of  sale  for  an  unlawful  purpose  is 
not,  for  that  reason,  void,  unless  forbidden  by  statute.     Thus, 

held,  that  such   an   agreement  was  selling  it  to  a  person  who  would  not 

void  as  against  public  policy,    and  be  competent,  by  law,  to  enter  and 

that  plaintilf,  having  purcliased  at  purchase  it  himself.    Brake  v,  Ballou, 

the  sale    and  taken  a  conveyance,  19  Kan.  397. 

could  sustain  an  action  of  ejectment  ^  Bier  v.  Dozier,  24  Gratt.  (Va.)  1. 
to  recover  from  defendant  the  part  ''  So  held  where  the  purchasers  of 
which  the  latter  claimed  under  the  land  deposited  with  a  stakeholder 
agreement,  and  of  which  he  was  in  tlieir  checks  for  §5,000  in  favor  of 
possession,  notwithstanding  the  fact  the  vendor's  agent,  the  parties  sign- 
that  plaintilf  had  received  from  de-  ing  an  agreement  tliat  tlie  checks 
fendant  his  share  of  the  purchase  should  be  delivered  to  the  payee  in 
price,  and  had  made  no  offer  to  re-  case  a  vote  to  be  taken  on  that  day 
fund  it ;  further,  that  plaintiff  was  in  West  Chicago  should  be  in  favor 
not  estopped  from  setting  up  the  of  what  was  known  as  the  West 
illegality  of  the  contract,  and,  being  Park  bill;  but,  in  case  the  majority 
the  legal  owner  of  the  premises,  was  of  the  votes  should  be  cast  against 
entitled  to  recover  the  portion  said  bill,  then  the  checks  were  to 
claimed.  Wheeler  v.  Wheeler,  5  be  delivered  to  the  drawers.  Mer- 
Lans.  (N.  Y.)  355.  chants',   etc.  Co.  v.  Goodrich,  75  III. 

1  Such  as  an  agreement  that  a  per-  554. 

son  shall  enter  and  purchase  a  tract  « Tatum  v.  Kelley,  25  Ark.  209. 
of  public  lands  for  the  purpose  of 


IGi  CONTRACT    OF   SALE. 

a  contract  to  sell  a  house  to  one  who  intends  to  keep  it  as  a 
bawdy-house  is  not  illegal  thereby  because  the  vendor  knows 
the  intention.^ 

§  5.  Agreements  void  in  part.  The  rule  is  that  if  any  part 
of  the  entire  consideration  for  a  promise  or  any  part  of  the 
promise  be  illegal,  whether  by  statute  or  at  common  law, 
the  whole  contract  is  void,  if  the  illegality  form  any  part  of 
the  contract  itself."  But  if  a  contract,  part  of  which  is  repug- 
nant to  law  and  against  public  policy,  while  the  other  part  is 
not,  can  be  divided,  so  much  as  is  unexceptionable  may  be  en- 
forced ;  ^  yet  a  separation  of  the  good  consideration  from  that 
which  is  illegal  will  be  attempted  only  in  those  cases  in  which 
the  party  seeking  to  enforce  the  contract  is  not  the  -wrong- 
doer. Where  both  parties  are  in  equal  fault,  no  remedy  can 
be  had  in  a  court  of  justice  on  an  illegal  transaction.* 

Where  the  contract  is  for  the  doing  of  two  or  more  things 
which  are  entirely  distinct,  and  one  is  repugnant  to  law  while 
the  others  are  legal,  the  illegality  of  the  one  stipulation  will 
not  ordinarily  affect  the  other.^ 

iSprague  v.   Rooney,  82  Mo.  493.  do  something  in  furtherance  of  the 

No  nation  or  state  is  bound  to  recog-  vendee's  design  to  violate  the  law  ; 

nize  or  enforce  contracts  which  are  but  positive  acts  in  aid  of  the  unlaw- 

injurious  to  its  interests,  the  welfare  ful  purpose,  though  slight,  are  suf- 

of  its  people,  or  which  are  in  fraud  ficient.     Fisher  v.  Lord,  63  N.  H.  514. 

or  violation  of  its  own  laws.     Hill  v.  2  Kattwitz  v.  Alexander,  34  Tex. 

Spear,  50  N.  H.  253;  Gaylord  v.  So-  689;  Chandler  v.  Johnson,  39  Ga.  85; 

ragen,  32  Vt.  110;  Feineman  v.  Sachs,  Saratoga  Bank  v.  King,  44  N.  Y.  87 ; 

33  Kan.  621.     Yet  the  mere  knowl-  Clements  v.   Morston,   52  N.  H.  31 ; 

edge  of  the  unlawful  intent  of  the  Fuller  v.  Reed,  38  Cal,  99.    As  where 

vendee  would  not  debar  a  vendor  A.  agreed  to  sell  B.  for  a  gross  sum 

from  the  enforcement  of  his  contract  a  lot  and  building  and  a  quantity  of 

so  long  as  he  did  not  in  any  way  aid  liquor.     The  sale  of  the  liquor  would 

the  vendee  in  the  violation  of  law.  have  been    illegal.     Held,   that  the 

This  has  always  been  the  recognized  contract  being  indivisible,  a  suit  for 

rule  in  regard  to  sales  of  chattels,  and  a  specific  performance  could  not  be 

the  principle  is  the  same  in  its  appli-  based  upon  it.     Gerlach  v.  Skinner, 

cation  to  real  property,     Wallace  v.  34  Kan.  86. 

Lark,   13  S.   C.    576;  Tracy   v.    Tal-  » Hanauer  v.    Gray,  25  Ark.  350; 

mage,   14  N.  Y.   162 ;  Henderson  v.  Clements  v.  Morston,  52  N.  H.  31. 

Waggoner,  2  Lea  (Tenn.),  133;  Rose  <  Saratoga  Bank  v.  King,  44  N.  Y. 

V.  Mitchell,  6  Colo.    102;  Brunswick  87. 

v.  Valleau,  50  Iowa,  120;  Michael  v.  5  Erie   R'y  Co.   v.  Express  Co.  85 

Bacon,  49  Mo.  474.    The  vendor  must  N.  J.  L,  240. 


VALIDITY    OF    LAND    CONTRACTS.  1C5 

§  6.  Sunday  contracts.  Trobably  no  proposition  of  law  is 
more  widely  known  or  generally  accepted  than  that  contained 
in  the  oft-repeated  statement,  "a  contract  made  on  Sunday  is 
void."  It  is  one  of  the  iirst  principles  taught  to  the  student, 
and  from  frequent  and  long-continued  iteration  has  become 
a  fixed  fact  in  the  mind  of  every  layman.  A  long  series  of 
judicial  decisions  give  stability  to  the  proposition/  and  it  has 
generally  come  to  be  considered  as  an  unassailable,  unbending 
and  impregnable  rule.  And  yet  a  contract  made  upon  Sun- 
day is  not  void  at  common  law,-  for  by  that  law  Sunday  dif- 
fered from  no  other  day  except  that  it  was  diesnon  juridicns. 
The  doctrine  that  contracts  made  on  Sunday  are  void  de- 
pends, therefore,  altogether  on  statutory  enactments.  Statutes 
relating  to  the  observance  of  Sunday  are  in  force  in  nearly 
every  state,  yet  these  statutes  vary  both  in  language  and  sub- 
stance; and  the  decisions  of  the  various  courts,  even  though 
presenting  an  apparent  uniformit}'-,  have  nevertheless  been 
based  mainly  on  the  phraseology  of  their  own  several  statutes. 
The  statutes  in  force  in  a  majority  of  the  states  are  based  upon 
the  English  statute  of  29  Car.  IL,  ch.  257,  which  prohibited 
all  "  worldly  labor,  business  or  work  on  the  Lord's  da}^"  ex- 
cepting only  work  of  charity  and  necessit3^  AVhere  this  stat- 
ute has  been  re-enacted,  either  in  terms  or  substantially,  the 
rule  first  stated  will  apply,  and  a  contract  executed  on  that 
day  will  be  incapable  of  enforcement.  But  where  the  statute 
does  not  seek  to  enf(^rce  the  performance  of  a  religious  duty, 
but  simply  to  ])reserve  the  peace  and  good  order  of  society  by 
the  prohibition  of  labor  on  Sunday,  a  contract  entered  into 
on  that  da}'^  would  possess  the  same  validity  as  one  made  upon 
a  secular  day;  for  the  making  of  a  contract  is  not  common 

iMoailer  v.  White,  G6  Me.  90;  Richmond  v.  Moore,  107  111.  429;  and 
Tuciicr  V.  West,  29  Ark.  38C;  Rj-no  see  the  En^^Iish  cases,  Comj-ns  v. 
V.  Darby,  20  N.  J.  Eq.  231;  Finn  v.  Bayer,  Cro.  Eliz.  485;  Rex  v.  Brotli- 
Donahue,  35  Conn.  216;  Pato  v.  crton,  Strange,  702;  King  v,  Whit- 
Wright,  30  Ind.  476;  Sayre  v.  nash,  7  B.  &  C.  596;  Drury  v.  De- 
Wheeler,  32  Iowa,  559;  Ilolcomb  v.  fontaine,  1  Taunt.  136.  In  tiiis  case 
Donley,  51  Vt.  428;  Stevens  V.  Wood,  Lord  ]\IansHeId  said:  "It  does  not 
127  Mass.  123;  Ellis  v.  Ilaniniond,  57  appear  that  the  common  law  ever 
Ga.  179;  Brimhall  v.  Van  Campen,  considered  those  contracts  as  void 
8  Minn.  13.  which  were  made  on  Sunday." 

2Horacek  v.  Keebler,  5  Nob.  355; 


IGG  CONTKACT   OF   SALE. 

labor,"  nor  is  it  in  derogation  of  a  statute  which  does  not  in 
terras  prohibit  business  as  well  as  labor.^ 

But  althougli  contracts  made  upon  Sunday  may  be  illegal 
in  tlie  sense  that  no  action  based  upon  such  contracts  can  be 
maintained  either  to  enforce  their  obligations  or  to  secure  their 
fruits,  they  are  not  altogether  inoperative.  After  they  have 
been  executed  b}''  the  parties  the  same  principle  of  public 
policy  which  leads  courts  to  refuse  to  act  when  called  upon  to 
enforce  them  will  prevent  the  court  from  acting  to  relieve 
either  party  from  the  consequences  of  the  transaction,  the  pur- 
pose, however,  not  being  to  validate  the  contract,  but  to  de- 
prive all  the  parties,  they  being  in  jxiri  delicto,  of  all  rights 
either  of  enforcement  or  relief." 

It  is  further  a  general  rule  of  law  that  void  contracts  are 
not  susceptible  of  ratification ;  but  it  has  been  held  in  numerous 
instances  that  contracts  not  otherwise  obnoxious,  but  void  only 
because  made  or  executed  on  Sunday,  form  an  exception  to 
this  general  rule,  and  may  be  rendered  valid  and  effective  by 
subsequent  ratification.^  Again,  a  deed  takes  effect  only  from 
the  time  of  its  delivery,  and  in  many  respects  the  same  rule  is 
applicable  to  contracts  and  agreements  which  precede  con- 
veyance. A  deed  may  be  dated,  signed  and  even  acknowl- 
edged on  Sunda}'' ;  but  if  not  delivered  until  a  subsequent  day 
it  is  valid,  whatever  may  be  the  effect  upon  the  acknowledg- 
ment.^ 

§  7.  Agreements  to  convey  l)y  will.  An  almost  unbroken 
line  of  precedents  confirm  the  doctrine  that  one  may  make  a 
valid  agreement  binding  himself  to  make  a  particular  disposi- 
tion of  his  property  by  last  will  and  testament,  and  that  spe- 

1  Bloom  T,  Richards.  2  Ohio  St.  387,  scription  of  secular  business  not 
in  which  it  was  held  that,  under  a  within  the  exceptions  pointed  out  by- 
statute  prohibiting  labor,  etc.,  enter-  the  statute  itself.  See  Love  v.  Wells, 
ing  into  a  contract  for  the  sale  of  25  Ind.  503;  Allen  v.  Deming,  14 
land  was  not,  in  the  sense  of  the  N.  H.  133 ;  Towle  v.  Larrabee,  26  Me. 
statute,  common  labor.     To  the  same  464. 

effect,  Horacek   v.   Keebler,  5  Neb.  -  Richmond  v.  Moore,  107  111.  429. 

355;    Richmond    v.    Moore,    107   111.  3  Meyers  v.  Meinrath,  101  Mass.  336; 

439;    Sayles    v.    Smith,    12    Wend.  Ellis  v.  Hammond,  57  Ga.  179. 

(N.   Y.)  57.     Some  courts    construe  ^  Banks    v.   Werts,    13    Ind.    203; 

the    statute    prohibiting    "  common  Adams  v.  Gay,  19  Vt.  353. 

labor  "  as  an  inhibition  of  every  de-  s  Love  v.  Wells,  25  Ind.  503. 


VALIDITY    OF    LAND    CONTRACTS.  107 

cific  pcrforraance  of  sucli  agreements  will  bo  decreed  in  all 
proper  cases.'  The  law  permits  every  man  to  dispose  of  bis 
own  property  at  his  own  pleasure  and  in  any  manner  best 
suited  to  himself;  he  may  contract  to  conve}'  by  deed  to  be 
made  at  some  future  time  or  upon  the  happening  of  some  con- 
tingency or  event,  and  with  equal  prcjpriet}'  he  may  agree  to 
perform  the  same  duty  by  testamcntar}'^  devise.  It  may  not 
l)c  wisdom  for  a  man  thus  to  embarrass  himself  as  to  the  final 
disposition  of  his  property.  But  with  the  wisdom  or  foolishness 
of  men's  contracts  the  law  has  no  concern;  it  permits  them  to 
be  the  disposers  of  their  own  fortunes,  and  the  sole  and  best 
judges  as  to  the  time  and  manner  in  which  same  shall  be  ac- 
complished. If,  therefore,  such  an  agreement  is  free  from 
fraud  or  undue  influence  and  made  upon  a  suificient  considera- 
tion, it  may  be  valid,  and  if  otherwise  unobjectionable  will  be 
enforced  by  com])elling  a  conveyance  from  the  heirs  of  the 
])romisor  or  purchasers  with  notice  from  him  in  his  life-time.- 

§  8.  Contracts  procured  by  fraud.  Where  a  contract  has 
been  entered  into  through  the  fraudulent  artifice  of  another, 
such  contract  is  not  ipso  factq  void.  It  is  voidable  only,  and 
may  become  void  at  the  election  of  the  defrauded  party. 
Should  he  decide  to  treat  it  as  valid  it  Avill  have  the  same  ef- 
fect and  be  governed  by  the  same  rules  as  other  contracts. 
If  apartyto  such  a  contract  desires  to  avail  himself  of  its  inva- 
lidity, he  must  not  only  disalfirm  the  same  at  the  earliest  prac- 
tical moment  after  discovery  of  the  fraud  that  has  been  prac- 
ticed upon  him,  but  return  or  offer  to  return  all  that  has  been 
received  under  it.  He  cannot,  with  knowledge  of  the  fraud, 
take  any  benefit  under  the  contract,  or  change  the  condi- 
tion of  the  propert}^  and  then  repudiate  the  contract;  for  the 
taking  of  a  benefit  is  an  election  to  ratif\'  it.  He  has  the  op- 
tion to  affirm  or  disaffirm,  but  he  cannot  do  both.^ 

§  9.  Ante-nuptial  contracts.  Executory  agreements  made 
between  a  man  ami  a  woman  who  afterwards  marry,  by  which 
it  is  attempted  to  regulate  and  control  the  interest  which  each 

iGupton  V.    Gupton,   47   Mo.    37;       -' Parsell  v.  Strykor,   41  N.  Y.  480. 
Wright    V.    Wright,    31    Mich.    3SU ;        » jiassoti  v.  Bovet,  1  Denio  (X.  Y.), 
Logan  V.   McGinnis.   12   Pa.   St.  27;    G9;  Cobb  v.  HatUeld,  4G  N.  Y.  533. 
Parsell    v.    Strykor,    41    N.    Y.    480; 
Maddox  V.  Kowe,  23  Ga.  431. 


1G8  CONTRACT   OF   SALE. 

of  the  parties  to  the  marriage  shall  take  in  the  property  of  the 
other,  during  coverture  or  after  death,  are  among  the  gener- 
ally-recognized yet  unfamiliar  forms  of  land  contracts.  Such 
agreements  were  treated  as  void  at  common  law;  but  equity, 
in  the  application  of  its  conscientious  principles,  has  ever  re- 
garded them  as  valid  and  binding  and  capable  of  enforcement 
against  either  at  the  suit  of  the  other,  The}'^  are  now  usually 
])rovided  for  by  statute,  and,  like  dower,  are  favored  by  the 
courts  and  enforced  according  to  the  intention  of  the  parties 
whenever  the  contingency  provided  by  the  contract  arises. 

No  special  formality  is  requisite  in  such  instruments;'  and,  in 
order  to  effectuate  the  intention  of  the  parties,  courts  of  equity 
will  impose  a  trust  upon  the  property  agreed  to  be  conveyed 
commensurate  with  the  obligations  of  the  contract,  or  will  de- 
cree their  specific  performance,  and  when  such  relief  is  inade- 
quate or  impracticable  from  the  situation  of  the  property'  or 
the  character  of  the  contract,  will  award  damages  for  its 
breach." 

§  10.  rost-iiuptial  contracts.  At  common  law  a  married 
woman  was  not  allowed  to  possess  property  independent  of  her 
husband ;  and,  as  the  law  regarded  husband  and  wife  as  but  one 
person,  it  did  not  permit  them  to  change  their  relations  by  en- 
tering into  a  contract  between  themselves.  But  in  equit}^  a 
wife  is  permitted  to  enter  into  a  contract  with  her  husband, 
for  a  valuable  consideration,  for  the  transfer  of  property  from 

1  An  ante-nuptial  contract  may  be  wliere  the  nature  of  the  instrument 

established    by  letters    between  the  is  contrary  to  what  the  person  pre- 

parties    written     before     marriage,  scribes,  but  demonstrates  an  intent 

Peck  V.  Vandemark,  99  N.  Y.  29.  to  charge,  it  shall  have  the  operation 

-  Peck  V.  Vandemark,  99  N.  Y.  29 ;  of  charginj^  in  that  form  which  the 
Johnson  v.  Spicer,  107  N.  Y.  185.  power  allows.  It  follows,  therefore, 
Upon  the  principle  that,  where  a  that  however  the  intent  be  shown, 
person  acts  for  valuable  considera-  if  it  be  in  writing  the  court  will,  in 
tiou,  as  upon  marriage,  he  is  under-  aid  of  the  intention,  supply  the  de- 
stood  in  equity  to  engage  with  the  fects  in  the  mode  of  execution  in 
person  with  whom  he  is  dealing,  to  favorof  the  jointress;  so  that  whether 
make  the  instrument  as  effectual  as  the  intent  to  execute  the  power  be 
he  is  able;  and  whenever  this  is  the  by  letter,  memorandum,  will,  arti- 
case  there  is  nothing  in  any  of  the  cles  or  covenant,  a  court  of  equity 
authorities  to  raise  a  doubt  that  it  will  aid  the  jointress,  and  supply  all 
shall  have  effect  so  far  as  the  person  omissions.  Bright  on  Husband  and 
executing  it   has   the  power;    and  Wife,  471. 


VALIDITY    OV    LAND    CONTRACTS.  1C9 

liim  to  licr;  and  courts  will  enforce  the  provisions  of  tlio  same 
where  any  incri((jrioiis  purpose  is  involved.' 

Since  the  |)assagc  of  the  statute  now  in  force  in  nearly  every 
state  removing-  counnon-hiw  restrictions  and  dcstroyin<^  the 
coniiiion-hiw  unity  of  ))crson,  married  women  may  contract 
with  their  husbands,  even  at  law;  and  contracts  so  made  will 
for  most  purposes  be  regarded  and  treated  in  the  same  light 
as  contracts  between  other  persons. 

'  Livingstone  v.  Livingstone,  2  Johns.  Cli.  (N.  Y.)  537;  Garlick  v.  Strong, 
3  Paige.  (N.  Y.),  440. 


170 


CONTKACT    OF   SALE. 


x\rt.  II.     As  Affected  by  the  Statute  of  Fkauds. 


§  I.  General  clTect  of  tlie  statute. 

2.  Entire  contract,  void  iu  part. 

3.  Defense  of  the  statute. 

4.  What  contracts    must  bo    in 

Avriting. 

5.  The  produce  of  land. 

6.  Standing  trees. 

7.  Growing  crops. 

8.  Ruined  walls  and  buildings. 


9.  Buildings  to  be  removed. 

10.  License  to  flood  lands. 

11.  License  for  right  of  way. 

12.  Parol  reservations. 

13.  Agreements  to  exchange. 

14.  Collateral  agreements. 

15.  Partnership     agreements 

dealing  in  lands. 

IG.  Ante-nuptial  agreements. 


for 


§  1.  General  effect  of  statute.  As  a  general  rule,  a  con- 
tract void  by  the  statute  of  frauds  is  void  for  all  purposes;  it 
confers  no  rifrhts  and  creates  no  oblio^ations  as  between  the 
parties  to  it,  and  no  claim  can  be  founded  upon  it  as  against 
third  persons.  It  is  incapable  of  enforcement,  either  directly 
or  indirectly.^  It  cannot  be  made  effectual  by  estoppel,  merely 
because  it  has  been  acted  upon  by  one  of  the  parties  and  not 
performed  by  the  other,^  for  there  is  no  exception  contained 
in  the  statute,  and  courts  have  no  right  to  create  any;  "and 
where  the  contract  is  entire,  and  one  part  is  void  for  non-com- 
pliance with  the  statute,  the  whole  is  void.* 

But  contracts  within  the  statute  of  frauds  are  not  illegal 
unless  evidenced  by  a  writing.  Their  invalidity  results  from  a 
non-compliance  with  prescribed  methods  of  proof,  and  they 
are  invalid  only  to  the  extent  that  they  may  not  be  enforced 
against  a  defendant  without  writing  — an  immunity  which  the 
defendant  may  waive.  If  the  defendant  does  not  see  fit  to 
avail  himself  of  the  protection  thus  afforded,  or  through  in- 

1  Dung  V.  Parker,  32  N.  Y.  492.  lations,   still   remaining    executory' 
2Brightman  v.    Hicks,    108   Mass.  As  to  those  the  statute  remains  oper- 
246 ;  Wheeler  v.  Frankenthal,  78  111.  ative,  declaring  them  void ;  for  if  the 
124;  McElroy  V.    Ludlum,    32  N,  J.  power  existed  to  maintain  an  action 
E(j.  828.  for  the  non-performance  of  one  por- 
3  Hairston  v,  Jaudon,  42  Miss.  380.  tiou  of  a  contract  void  by  the  stat- 
■*  Fuller  V.  Reed,  38  Cal.  99 ;  Hobbs  ute,  it  is  difficult  to  see  what  would 
V.  Wetherwax,  38  How.  Pr.  (N.  Y.)  stand   in   the   way  of  allowing  the 
385.     A  part  performance  of  a  con-  same  thing  to  be  done  where  an  en- 
tract  void  by  the  statute  of  frauds  tire  omission  to  perform  might  be 
may  render  it  binding  and  valid  as  shown    by  the    evidence.     Weir  v. 
far  as  that  extends;  but  it  can  have  Hill,  2  Lans.  (N.  Y.)  278. 
no  effect  upon  any  remaining  stipu- 


VALIDITY    OF    LAXD    CONTRACTS.  171 

advertence  or  neglect  fails  to  properly  object  to  testimony  of 
parol  agreements  when  offered,  he  will  be  held  to  have  waived 
such  right  after  the  tesliniony  has  been  closed,  and  cannot  be 
heard  to  complain  that  the  agreement  was  void  by  reason  of 
the  statute  of  frauds.'  So,  also,  a  parol  contract  required  to 
be  in  writing  by  the  statute,  if  treated  as  obligatory  by  tlie 
])arties  until  it  is  executed,  is  not  void ;  -  nor  does  the  statute 
restrict  parties  from  the  voluntary  performance  of  their  parol 
enfragements. 

Such  is  the  effect  of  the  statute  at  law.  In  equity  the  rules 
last  stated  have  been  infringed,  and  in  cases  of  part  perform- 
ance a  contract  void  at  law  has  been  permitted  to  have  effect 
where  a  denial  of  such  relief  would  manifestly  tend  to  en- 
courage fraud.  The  wisdom  of  the  innovation  has  often  been 
doubted,  but  the  practice  is  now  too  well  established  to  be  at- 
tacked. This  phase  of  the  subject  will  be  fully  considered  in 
treating  upon  the  equitable  remedies  of  the  parties,  and  need 
not  be  further  alluded  to  here. 

§  2.  Entire  contract,  void  in  part.  The  rule  is  that  where 
a  contract  is  entire,  and  one  part  is  void  for  non-compliance 
with  the  statute  of  frauds,  the  whole  is  void.^ 

§3.  Defens.^  of  the  statute  —  By  whom  avaihihle.  Tiie 
defense  of  the  statute  of  frauds  is  iiersonal,  and  can  only  be 
)'elied  on  by  the  parties  or  tiieir  privies.*  Strangers  to  the 
transaction  cannot  im])cach  it  by  showing  that  it  is  void  for 
statutory  non-compliance,'"'  and  the  parties  may  waive  the  de- 
fense at  their  ])leasure." 

1  Montgomery  v.  Edwards,  46  Vt.  also  asrced  that  the  wheat  growing 
151.  on  the  farm  should  be  transferred, 

2  Wheeler  v.  Frankenthal,  78  111.  held,  the  former  agreement  being 
124;  Aicardi  v.  Craig.  42  Ala.  311.  void  for  want  of  a  writing,  the  lat- 

*  As  where  R.  orally  agreed  with  ter  being  connected  with  it,  was  also 
F.  to  give  him  a  certain  jxirtion  of  void,  though  otherwise  it  might  not 
the  purchase  money,  and  also  a  cer-  have  been.  Jackson  v.  Evans,  41 
tain  parcel  of  land  for  his  services  in  Mich.  510 ;  Clark  v.  Davidson,  53  Wis. 
elTecting  the  sale  of  R.'s  land,  but  317;  Becker  v.  Mason,  30  Kan.  G97. 
no  memorandum  was  made  of  the  ••  Chicago  Dock  Co.  v.  Kinzie,  4'J 
promise;  held,  that  the  whole  con-    111.  281). 

tract  was  void,  and  no  action  would       '^Richards  v.  Cunningham,  10  Neb. 
lie  either  for  the  money  or  the  land.    417:  Davis  v.  Inscoe,  84  N.  C.  396. 
Fuller  V.  Reed,  38  Cal.  99.     And  so       « :\Iontgomery  v.  Edwards,  46  Vt. 
where  a  verbal  agreement  was  made    151. 
for  the  transfer  of  a  farm,  and  it  was 


17:2  CONTRACT   OF   SALE. 

§  4.  What  contracts  must  be  in  writing.  The  statute  in 
general  terms  provides  that  no  action  shall  be  brought  to 
charge  any  person  upon  any  contract  for  the  sale  of  lands,  or 
any  interest  in  or  concerning  them,  unless  such  contract  shall 
be  evidenced  by  a  writing;  and  this  general  statement  has  been 
the  subject  of  much  comment,  fine  drawn  distinction,  and  not 
a  little  inharmonious  decision.  The  interest  thus  provided  for 
extends  to  cover  every  species  of  claim  from  the  full  legal 
title  to  the  faintest  equit}','  while  the  rule  applies  to  all  parties 
who  assume  to  act,  whether  on  their  own  behalf  or  on  behalf 
of  another." 

An  interest  in  contingent  profits  arising  from  a  sale  of  real 
estate  to  be  made  thereafter  does  not  amount  to  an  interest 
in  the  land  itself  within  the  meaning  of  the  statute;^  and  the 
same  is  true  generally  of  agreements  for  the  payment  of  money 
based  upon  the  future  sales  or  purchases  of  propert3\*'     But 

1  Holmes  v.  Holmes,  86  N.  C,  205 ;  agreement  to  accept  a  conveyance  in 
Lillie  V.  Dunbar,  62  Wis.  198;  Eich-  trust,  and  to  reconvey  to  the  cestui,  is 
ards  V.  Richards,  9  Gray  (Mass.),  313.  within  the  statute,  and  cannot  be 
The  sale  of  an  equity  of  redemption  shown  by  parol.  McClain  v.  McClain, 
is  within  the  statute.  Scott  v.  Mc-  57  Iowa,  167.  So  also  of  an  oral  con- 
Farland,  13  Mass.  309  —  an  agreement  tract  under  which  one  is  to  buy  land 
for  the  release  of  dower  by  widow;  at  a  public  auction  on  joint  account 
Shotwell  V.  Sedam,  3  Ohio,  5;  Gor-  of  himself  and  others.  Parsons  v. 
don  V.  Gordon,  56  N.  H.  170;  Wright  Phelan,  184  Mass.  109.  So  of  an 
V.  De  Groff,  14  Mich.  164  —  an  agree-  agi'eement  to  procure  a  relinquish- 
ment to  transfer  a  mining  claim ;  mcnt  of  a  wife's  dower,  Martin  v. 
Copper  Hill  Mining  Co.  v.  Spencer,  Wharton,  38  Ala.  637. 

25  Cal.  18  — an  agreement  for  the  as-  3  Benjamin  v.  Zell,  100  Pa.  St.  33; 

Bignment  of  an  executory  land  con-  Babcock  v.  Reed,  50  N.  Y.  Sup.  Ct.  126. 

tract;  Smith  v.  Burnham,  3  Sumn.  ^  As  where  A.  promised  to  pay  B, 

(C.  Ct.)  435.  $100   if    the  latter    would  buy  C.'s 

2  A  contract  to  procure  the  convey-  land,  which  B.  thereupon  bought,  it 
ance  of  an  equitj-^  held  bj'  a  third  was  held,  in  a  suit  to  recover  the 
person  is  within  the  statute  of  frauds  $100,  that  the  contract  was  not  within 
as  a  contract  for  the  sale  of  an  inter-  the  statute  of  frauds,  either  as  relat- 
est  in  lands,  and  is  void  if  not  in  iug  to  land  or  as  a  promise  to  pay  the 
writing.  Rawdon  v.  Dodge,  40  Mich,  debt  of  another.  Little  v.  McCarter, 
697.  An  agreement  with  a  debtor  to  89  N.  C.  233.  A  parol  agreement  to 
purchase  his  land  at  execution  sale,  buy  a  mortgage  on  A. 's  land,  sell  the 
and  then  convey  it  to  him,  is  within  premiums  for  his  benefit  and  account 
the  statute.  Harrison  v.  Bailey,  14  for  the  balance  over  disbursements 
S.  C.  334.  And  see  Rucker  v.  Steele-  is  not  within  the  statute.  McGinnis 
man,  73  Ind.  396 ;  Bauman  v.  Holz-  v.  Cook,  57  Vt.  36.  And  see  Mahagaa 
bausen,  26  Hun  (N.  Y.),  505.  A  parol  v.  Mead,  63  N.  H.  130. 


VALIDITY    OF    LAND   CONTKACTS.  173 

even  contracts  for  the  pa\'mcnt  of  money  only  may  and  often 
do  involve,  directly  or  indirectly,  some  estate  or  interest  in 
land ;  and  when  such  is  the  case,  such  promises  must  be  evi- 
denced by  writing,  notwithstanding  that  they  do  not  profess 
to  be  for  the  sale  or  conveyance  of  land.' 

An  easement,  license  or  privilege  may  be  and  often  is  such 
an  interest  in  land  as  is  contcniphitod  by  the  statute;  and,  un- 
less the  grant  of  the  same  is  evidenced  by  a  writing  in  conform- 
ity to  the  statute,  it  would  be  unavailing  to  establish  any  legal 
right  in  the  licensee.  It  is  true  that  a  license,  in  the  usual  and 
ordinary  acceptation  of  the  term,  is  simply  an  authority  given 
to  do  some  one  act  or  series  of  acts  on  the  land  of  another 
without  passing  any  estate  in  such  land;  but  licenses  may 
sometimes  practicall}''  amount  to  the  granting  of  an  estate, 
and  when  such  is  the  case  they  are  regarded  in  the  light  of 
leases,  which,  to  be  effectual,  must  be  by  deed.-  The  distinc- 
tion will  readily  be  seen.  Licenses  to  do  a  particular  act  do 
not  in  any  degree  trench  upon  the  policy  of  the  law,  which 
requires  that  bargains  respecting  the  title  or  interest  in  real 
estate  shall  be  by  deed  or  in  writing.  They  amount  to  nothing 
more  than  an  excuse  for  the  act,  which  would  otherwise  be  a 
trespass;  but  a  permanent  right  to  hold  another's  land  for  a 
particular  purpose,  with  a  right  to  enter  upon  it  at  all  times, 
or  where  any  interest  greater  than  a  temporary  occupation  is 
created,  while  it  does  not  extend  to  the  land  itself,  is  never- 
theless a  right  annexed  to  it,  which  can  only  j^ass  by  grant. 

•  Tlius,  a  promise  to  pay  a  sum  of  construed  the  contract  to  import  a 

money   as    a    compensation   to    the  sale  of  land  by  the  phiintiir,  an<l  tliat 

plaintiff  for  the  injury  done  him  by  the  sum  of  money  stipulated  to  bo 

tlie  misconduct  of  the  defendant  in  paid  was,  in  contemplation  of  the 

obtaining  a  patent  in  his  own  name  parties,  to  extinguish  the  title  of  the 

for  land  whicli  he  ought  to  have  pat-  said  plaintiff. 

tented  in  the  name  of  the  plaintiff,  -Cook  v.  Stearns,  11  Mass.  o3G; 
and  in  preventing  the  plaintiff  from  Mumford  v.  Whitne}-,  L")  "Wend, 
obtaining  a  patent  in  his  own  name,  (N.  Y.)  oSO.  Thus,  the  conferring  of 
and  in  consideration  of  the  defend-  a  right  to  enter  upon  lands  and  to 
ant's  liaving  procured  the  patent  to  erect  and  maintain  a  dam  as  long  as 
be  issued  to  himself,  is  a  contract  for  there  shall  be  employment  for  the 
the  sale  of  land  Avithin  the  statute  water-power  thus  created  is  more 
of  frauds,  and  must  be  in  writing,  than  a  simple  license.  It  is  the  trans- 
Hughes  V.  Moore,  7  Cranch  (U.  S.),  fer  of  an  interest  in  lands,  and  to  be 
17(3.     In  this  case  the  learned  judges  valid  must  be  in  writing.     Id. 


171  CONTRACT   OF    SALE. 

No  such  interest  can  be  assigned  or  granted  without  writing, 
according  to  the  express  provisions  of  the  statute  of  frauds.' 

§  5.  Tho  produce  of  land.  Owing  to  the  conflict  in  the 
adjudged  cases  in  regard  to  the  interpretation  of  contracts  for 
the  sale  of  crops  and  the  natural  produce  growing  upon  land, 
it  is  difficult  to  deduce  therefrom  any  clearlj'-defined  rule  upon 
the  subject.  A  marked  distinction  has  alwa3's  been  made  be- 
tween contracts  for  the  natural  product  of  land,  technically 
termed  prima  vestura,  as  trees,  grass  or  other  spontaneous 
growth,  and  such  as  relate  only  to  crops  raised  by  the  industry 
of  man  by  planting  and  cultivation,  called  /ructus  industriales. 
A  further  distinction  is  also  made  between  the  natural  product 
when  severed  by  the  vendor  or  purchaser.  As  a  general  prop- 
osition, all  of  the  produce  of  the  earth,  whether  of  spontaneous 
growth,  as  trees,  grass,  etc.,  or  crops  raised  periodically  and 
by  cultivation,  as  grain,  vegetables,  etc.,  are  part  of  the  soil 
before  severance ;  and  for  this  reason  it  has  been  held  that 
agreements  vesting  an  interest  in  them  in  the  purchaser  before 
severance  must,  to  be  effective,  be  expressed  in  writing.-  But 
in  this  respect  the  authorities  are  not  harmonious.  It  has  been 
contended,  and  w' ith  much  apparent  reason,  that  there  is  noth- 
ing in  the  products  of  the  earth  which  is  an  interest  in  or  con- 
cerning land  when  severed  from  the  soil.  If,  therefore,  such 
products  are  sold  specifically,  and  by  the  terras  of  the  contract 
are  to  be  separately  delivered  as  chattels,  such  sale  cannot  be 
held  to  be  an  interest  in  land,  and  would  not  be  affected  by  the 
terms  of  the  statute.'  The  circumstance  that  the  produce 
may  or  probably  or  certainly  will  derive  nourishment  from 
the  soil  between  the  time  of  the  contract  and  the  time  of  de- 
livery is  not  conclusive  as  to  the  operation  of  the  statute;  and 
the  test  seems  to  be  that  if  the  contract,  when  executed,  is  to 
convey  to  the  purchaser  a  mere  chattel,  though  it  may  be  in 
the  interim  a  part  of  the  realty,  it  is  not  affected  by  the  stat- 
ute; but,  if  the  contract  is,  in  the  interim,  to  confer  upon  the 
purchaser  an  exclusive  right  to  the  land  for  a  time,  for  the 
purpose  of  making  a  profit  of  the  growing  surface,  it  is  affected 

1  Thompson  v.  Gregory,  4  Johns.  ^gee  Purner  v.  Piercy,  40  Md.  212; 
(N.  Y.)  81;  Mumford  v.  Whitney,  15  Graff  v.  Fitch,  58  111.  377;  Marshall 
Wend.  (N.  Y.)  380.  v.  Ferguson,  23  Cal.  69. 

2  Kerr  v.  Hill,  27  W.  Va.  576. 


VALIDITY    OF    LAND    C<JNTUACTS.  175 

b}'  the  statute  and  must  bo  in  writin;^,  althouf^h  the  purchaser 
is  at  last  to  take  from  the  land  only  a  chattel. 

§  6.  Standiim;  trees.  There  are  a  lar^e  numl)er  of  appar- 
ently well-cuQsidered  American  decisions  which  hold  that  a 
contract  for  the  sale  of  trees  growing  upon  land  is  within  tho 
statute  of  frauds,  as  comprehending  a  sale  of  land,  "or  some 
interest  therein;"'  and  hence,  to  be  operative  or  enforceable, 
must  be  in  writin":.-  Under  these  decisions  standi n;r  trees  are 
regarded  as  a  part  and  ]iarcGl  of  the  Ir.ud  in  wliich  thov  are 
rooted,  and  from  which  th(;y  draw  their  support,  and  that  be- 
ing thus  impressed  with  the  character  of  real  estate  they  fall 
strictly  within  the  letter  as  well  as  the  spirit  of  the  statute.'' 
On  the  other  hand,  there  are  not  wanting  authorities  which 
sustain  the  doctrine  that  where  timber  or  produce  of  land,  or 
other  thing  annexed  to  the  freehold,  is  sold  specifically,  whether 
it  is  to  be  taken  by  the  vendee  under  a  special  license  to  enter 
for  that  purpose,  or  whether  it  is  to  be  severed  from  the  soil 
by  the  vendor,  in  the  contemplation  of  the  parties  it  is  still 
substantially  a  sale  of  chattels  only.*  It  cannot  be  doubted 
that,  in  every  sale  of  this  description,  such  is  the  intention  of 
the  parties;  and  the  onlv  question  that  arises  is  whether  by 
the  principles  of  law  such  intention  can  be  effectuated. 

The  question  has  assumed  many  phases  and  different  inter- 
pretations. Thus,  it  has  l^oen  held  that  a  sale  in  writing  by 
the  owner  of  the  fee  in  the  land  has  the  effect  in  law  to  sever 
the  trees  from  the  land,  and  that  they  then  become  ])ersonal 
chattels  without  any  actual  severance;  that,  after  such  legal 
severance  by  the  original  sale,  they  may  be  conveyed  like  any 

iThe  term   "land"  embraces  not  St.  376;  Knox  v.  Haralson,  2  Tenn 

only  the  soil  but  its  natural  produce  Ch.  232. 

growing  upon  it  and  aftixed  to  it,  all        ''Kingsley  v.   Ilolbrook,  45  N.    H. 

of  which  pass  by  a  grant  of  it.     Har-  313:  Buck  v.  Pickwell,  27  Vt.   157: 

rell  V.  Miller,  35  Miss.  700;  Kingsley  Yeakle  v.  Jacob,  33  Pa.  St.  376. 
V.  Holbrook,  45  N.  H.  313.  *  Smith  v.  Bryan,  5  Md.  141;  Cain 

20wens  V.  Lewis,  46  Ind.  488:  Rus-  v.  McGuire,   13   B.   Mon.  (Ky.)  340: 

sell  V.  Meyers,  32  Mich.   522;  Kings-  Cutter  v.  Pope,  13  Me.  377;  Killniore 

ley  V.  Holbrook,  45  N.  H.  313;  Buck  v.  Ilowlett.  48  N.  II.  5G9;  Green  v.  H. 

T.   Pickwell,  27  Vt.  164;    Harrell  v.  R.  Co.  73  N.  C.  524.     In  this  ease  the 

]\Iiller,  35  Miss.  700 ;  Jenkins  v.  Lykes,  wood  had  been  cut  and  carried  away, 

19  Fla.   148;  Slocum  v.  Seymour,  36  and  the  action  was  brought  for  the 

N.  J.  L.  139;  Killmore  v.  Howlett.  price. 
48  N.  Y.  569;  Yeakle  v.  Jacob.  33  Pa. 


176  CONTRACT   OF    SALE. 

other  personal  property  by  parol;  and  that,  when  such  con. 
veyance  by  the  owner  of  the  fee  does  not  limit  the   time  for 
the  entry  of  the  grantee  upon  the  land  to  cut  and  remove  the 
trees,  a  right  of, entry  passes  for  an  indellnite  but  reasonable 
time  for  the  removal  of  all  the  trees.     Here,  therefore,  there 
would  seem  to  be  a  recognition  of  the  principle  that  growing 
trees  may  be  the  subject  of  an  ownership  distinct  from  the 
ownersliip  of  the  soil,  and  that  mider  the  circumstances  stated 
they  are  no  longer  deemed  as  annexed  to  the  realty,  but  as 
entirely  abstracted  or  divided  therefrom,  and  may  be  treated 
the  same  as  other  personal  chattels    which   are   the  annual 
produce  of  labor  and  of  the  cultivation  of  the  earth.'     While 
the  timber  remains  standing  it  is  certainly  an  integral  part  of 
the  realty,  and  until  severed,  either  actually  or  constructively, 
remains  the  property  of  the  owner  of  the  soil;  but  it  is  doing 
no  violence  to  established  legal  principles  to  construe   such 
contracts  as  passing  an  interest  in  the  trees  when  severed  from 
the  freehold;-  while  it  is  well  settled  that  a  license  to  enter  on 
the  land  of  another  and  do  a  particular  act  or  series  of  acts 
may  be  valid,  although  not  granted  by  deed  or  in  writing.^  If 
such  a  license  be  not  revoked  before  the  trees  are  severed  the 
title  in  the  property  will  become  absolute  in  the  vendee,  and 
the  license,  being  coupled  with  an  interest,  will  then  be  irrev- 
ocable, giving  to  the  vendee  a  perfect  right  to  enter  and  re- 
move the  trees  thus  severed;    but   if,   before   the   trees   are 
severed,  the  vendor  should  revoke  such  license,  no  title  under 
this  line  of  decisions  would  pass  to  the  vendee  and  no  rights 
would  vest  by  virtue  of  such  contract.*     It  will  be  seen,  there- 
fore, in  this  view  of  the  case,  that,  notwithstanding  a  parol  sale 
of  timber  may  be  void  as  a  sale  of  an  interest  in  land,  it  may 
nevertheless  still  be  permitted  to  operate  as  a  license  to  enter, 
cut  and  carry  away  the  trees;  and,  if  executed  by  cutting,  the 

1  See  Warren  v,  Leland,  2  Barb,  purpose  of  removal.  Poor  v.  Oak- 
(N.  Y.)  613;  Cudwortli  v.  Scott,  41  man,  104  Mass.,  316;  Jenkins  v, 
N.  H.  456.  Sykes,  19  Fla.  148;  Yale  v.  Seeley,  15 

2  Wliite  V.  Foster,  103  Mass.  378.  Vt.  221. 

Sach  agreements  may  be  regarded  as  '■^Hill   v.    Cutting,   107  Mass.    597; 

executory  contracts  for  the  sale  of  Sterling  v.  Baldwin,  42  Vt.  306. 

chattels  as  they  shall  be  thereafter  *  Owens  v.  Lewis,  46  Ind.  488 ;  Poor 

severed  from  the  real  estate,  with  a  v.  Oakman,  104  Mass.  310;  Delaney 

license  to  enter  on  the  land  for  the  v.  Root,  99  Mass.  546. 


VALIDITY    OF    LAND    CONTRACTS.  177 

timber  will  be  converted  into  personalty  and  the  title  theroto 
will  vest  in  the  person  acting  under  the  license,  he  having 
complied  with  all  the  conditions  under  which  the  same  was 
granted.' 

The  cases  which  unqualifiedly  hold  that  a  sale  of  growing 
trees  is  a  sale  of  chattels  only  are  very  few,-  and  are  mainly 
based  upon  the  fact  that  such  sales  were  made  in  prospect  of 
immediate  separation  from  the  land  —  the  idea  being  that  the 
trees  sold  would,  on  account  of  their  immediate  removal,  de- 
rive no  benefit  from  the  land. 

§  7.  Growing  crops.  That  growing  crops  are  a  part  of  the 
freehold  and  pass  with  the  land  upon  which  they  stand  is  a 
proposition  settled  beyond  doubt; '  and  the  rule  as  stated  by  the 
earlier  writers  is  that,  in  contracts  for  the  sale  of  things  an- 
nexed to  and  growing  upon  the  freehold,  if  the  vendee  is  to 
have  the  right  to  the  soil  for  a  time  for  the  purposes  of  further 
growth  and  profit  of  that  which  is  the  subject  of  sale,  it  is  an 
interest  in  land  within  the  meaning  of  the  statute  of  frauds, 
and  must  be  jiroved  by  writing;  but  when  the  thing  is  sold  in 
prospect  of  separation  from  the  soil,  immediately  or  within  a 
convenient  and  reasonable  time,  without  anv  stipulation  for 
the  beneficial  use  of  the  soil,  but  a  mere  license  to  enter  and 
take  away,  it  is  to  be  regarded  substantially  as  a  sale  of  goods, 
and  so  not  within  the  statute;  although  an  incidental  benefit 
may  be  derived  to  the  vendee  from  the  circumstance  that  the 
thing  may  remain  for  a  time  upon  the  land.*  Later  decisions 
have  not  been  in  strict  accord  with  this  old  rule;  and  while  in 
some  states  it  is  substantially  recognized  and  adopted,  in  others 
it  has  been  expressly  denied.  In  view  of  the  American  author- 
ities on  this  subject  no  satisfactory  rule  can  be  framed  that 
shall  have  a  general  application;  but  the  test,  in  most  cases, 
will  depend  upon  the  terms  of  sale  with  reference  to  the  right 
of  the  purchaser  to  use  the  land,  either  for  the  purpose  of  fur- 
ther cultivation  or  possibly  for  the  harvesting  of  the  crop.^  The 

1  Jenkins  v.    Lykes,   19    Fla.    148;  372:  Erskine  v.  Plummer,  7  Me.  447 ; 

Pratt  V.  Ogden,  34  N.  Y.  23;  Yale  v.  Puiner  v.  Piercy,  40  Md.  212. 

Seeley,  15  Vt.  221 ;  Poor  v.  Oakman,  3  Kerr  v.  Hill,  27  W.  Va.  576. 

104  Mass.    316.     And    see    Huff    v.  <  Purner  v.    Piercy,    40    Md.    212; 

McCauley,  53  Pa.  St.   210;  Howe  v.  Clraff  v.  Fitch,  58  111.  377. 

Batchelder,  49  N.  H.  204.  5  Consult   Sterling  v,  Baldwin,   42 

2SeeByasse  V.  Reese,  4  Met.  (Ky.)  Vt.   306;    Whituiarsh  v.    Walker,   1 
12 


17S  CONTKACT    OF    SALK. 

tendency  of  the  authorities,  however,  is  to  regard  all  contracts 
for  the  sale  of  natural  produce,  in  place,  as  a  sale  of  an  in- 
terest in  land;'  while  cultivated  crops,  or  such  as  come  within 
the  meaning  of  the  term  fructus  industrlales^  as  sales  of 
goods  only  —  the  former  to  be  evidenced  by  a  writing,  while 
the  latter  may  rest  in  parol.- 

§  8.  Ruined  walls  antl  buildings.  Complete  or  unfinished 
structures  of  any  kind,  where  the  annexation  is  of  a  perma- 
nent character,  are  properly  considered  as  forming  part  of  the- 
realty  so  long  as  the  materials  of  whicli  they  are  composed 
remain  in  place.  That  the  original  building  has  been  destroyed 
by  fire  or  other  casualty  does  not  alter  the  rule  or  afford  room 
for  a  different  construction.  The  materials  of  which  a  build- 
ing is  composed  will,  so  far  as  they  may  become  severed  by 
fire,  become  personalty,  and  may  properly  be  the  subject  of  a 
valid  contract  by  parol;  yet  where  walls  remain  standing,  even 
though  dilapidated  and  in  ruins,  the}''  do  not  lose  their  essen- 
tial character  as  realty,  and  contracts  relating  to  them  are 
for  interests  in  land,  which,  under  the  statute,  must  be  in  writ- 
ing. Hence,  a  contract  for  the  sale  of  the  debris  and  refuse 
left  by  a  fire,  while  valid  if  relating  only  to  the  fallen  and  de- 
tached portions,  would  be  incapable  of  enforcement  as  to  the 
standing  walls  unless  in  writing;  and  although  part  of  the 
subject-matter  might  have  been  personalty,  yet,  if  the  con- 
tract embraced  realty  as  well,  it  must  be  regarded  as  entire 
and  governed  by  the  statute  of  frauds.^ 

Met.  (Mass.)  313;  Giles  v.  Simmonds,  being  made,  is  not  a  contract  for  the 

15  Gray  (Mass.),  411;  Poor  v.    Oak-  sale  of  an  interest  in  or  concerning 

man,  101  Mass,  309.  lands,    etc.,    within    the    statute  of 

1  Tims,  wild  grass  growing  on  un-  frauds.     Whitmarsh   v.    Walker,     1 

occupied,  uncultivated  land  is  part  of  Met.  (Mass.)  313. 

the  realty,  and  an  attempt  to  transfer        ^^  Thayer  v.  Rock.  13  Wend.  (N.  Y.) 

ic  by  a  parol  grant  is  void.    Powers  v.  53.     Wliere  .a  building  was  burned, 

Clarkson,  17  Kan.  218.  and  the  owner  afterwards  verbally 

-Sterling  v.  Baldwin,  43  Vt.   306;  sold  the  bricks,  some  of  which  had 

Howe  v.  Batchelder,  49  N.   H.  204;  been  severed   by  the    fire,    but  the 

Siocum  V.  Seymour,  36  N.  J.  L.  138;  greater  part  remaining  in  the  walls, 

Owens  V.  Lewis,  46  Ind.  48S.  An  oral  it   was  held    that   the  brick   in  the 

agreement  for  the  sale  of  mulberry-  walls  was  realty,  and  the  sale  being 

trees  growing  in  a  m!irsery,  and  raised  an  entirety  was  within  tlie  statute  of 

to  be  sold  and  transplanted,  to  be  frauds.     Meyers  v.    Schemp,  07  111. 

delivered  on  the  ground  where  they  469. 
are  growing,  upon  payment  therefor 


VALIDITY    OF    r-AND    CONTKACT8.  179 

§  y.  JJiiihliiii^s  to  be  removed.  Tlie  sale  of  a  building  with 
tlie  right  of  removal  is  not  necessarily  a  sale  of  an  interest  in 
lands  within  the  meaning  of  the  statute  of  frauds;  and  if  the 
elFect  of  the  contract  of  the  jiarties  is  to  impress  upon  the 
structure  the  chai'acter  of  personalty,  it  will  ordinarily  be  per- 
mitted to  take  that  character.'  » If  the  structure  is  sold  to  re- 
main on  the  land,  unless  of  a  vorv  slight  and  unsuljstantial 
character,  this  would  without  doubt  be  a  sale  of  an  interest 
in  land  within  the  statute.  Certainly  such  would  be  the  case 
if  the  sale  is  made  by  the  owner,  although  it  might  be  other- 
wise if  made  by  a  tenant  or  licensee.  Bat  where  the  owner 
sells  a  building  with  the  right  of  removal,  he  severs  it  fnjm 
the  land  and  gives  it  the  character  of  personalty;  and  in  im- 
pressing this  character  upon  it,  he  takes  it  without  the  statute 
as  ell'ectu;illy  as  it'  he  had  torn  it  down  and  sold  the  materials 
of  which  it  was  composed.' 

§  10.  LiciMi'O  to  llooil  Ian  Is.  The  right  to  flood  the  land 
of  another,  whether  from  the  dripi)ing  from  the  roof  of  a 
building,  the  diversion  of  a  water-course,  or  otherwise,  is  an  in- 
terest in  land;  and  a  parol  license  or  an-reement  2:ivin<T  such 
right  is  within  the  statute  of  frauds  and  void.  Such  a  license 
is  revocable  at  any  time.'^  The  interest  created  by  such  a 
license  is  a  freehold  interest  by  way  of  easement  in  the  land 
flowed,  whi'jh  can  pass  only  by  deed.^ 

§  11.  License  for  riglit  of  way.  A  verbal  license  for  a 
right  of  way  over  lands  is  obnoxious  to  the  statute  and  revo- 
cable at  any  time.' 

§  12.  Parol  re.  ervations.  In  sales  of  improved  property 
it  is  no  uncommon  thing  to  make  a  verbal  arrangement  con- 

1  Rogers  v.  Cox,  90  Intl.  157;  Koy-  be  the  subject  of  a  valid  verbal  cen- 
ser v.  School  District,  35  N.  H.  477;  tract  of  sale.  And  see  Long  v.  Wljite. 
Ham  v.  Kandall,  111  Mass.  297;  Pul-  -12  Ohio  St.  59,  where  a  verbal  con- 
len  V.  Bl'11,  40  Me.  314;  Coleman  v.  tract  for  the  sale  and  delivery  of  a 
Lewis,  27  Pa.  St.  291.  house  tiien  alKxed  to  tlie  realty,  but 

-Rogers  v.   Co.x,  90  Iiid.   157.     In  afterward  severed  ami  delivered  on 

this  case  it  did  nut  appear  that  the  rollers,  was  held  not  within  tlie  stat- 

building  was  permanently  annexed  ute  of  frauds. 

to  the  land,  and  ihe  court  refused  to       *  Tanner  v.  Valentine,  75  111.  624. 
decide  what  would  be  the  rule  in  case       ••  Mumford  v.  AVhitney.    15  Wend, 

it  had  been,   but  at  the  same  time  (N.  Y.)  380. 
strongly  intimating  that  it  might  still        "'Forbes  v.   Balenseifer,  74  111.183. 


180  CONTEACT    OF   SALE. 

temporaneous  with  the  written  contrcact,  whercb}'  a  reserva- 
tion is  made,  or  attempted  to  be  made,  of  trees,  shrubbery, 
buildings  and  other  artificial  objects  upon  the  property.  It 
seems  ahnost  unnecessary  to  repeat  here  what  has  been  fully 
discussed  in  tiiis  and  other  chapters  of  the  work  relative  to  the 
character  of  annexations  and  Rccretions  to  land,  as  well  as  the 
utter  inadmissibility  of  contemporaneous  verbal  agreements  to 
impair  the  effect  of  a  written  contract,  which  the  parties  in 
executing  are  deemed  to  have  deliberately  made  the  exclusive 
evidence  of  the  terms  of  their  agreement.  The  positive  rules 
of  law  forbid  any  such  showing;  and  where  the  contract  is 
efficient  to  pass  the  land,  trees,  shrubs,  buildings,  etc.,  are  con- 
sidered as  annexed  to  it  and  pass  by  a  sale  of  the  soil.^ 

§  13.  Agreements  to  exchange.  A  contract  for  the  ex- 
change of  lands  is  as  much  within  the  statute  of  frauds  as  a 
contract  for  their  sale.-  The  statute  which  requires  such  con- 
tract to  be  in  writing  is  equally  binding  on  courts  of  equity  as 
courts  of  law;  and  while  courts  of  equity  have,  in  many  in- 
stances, relaxed  the  rigid  requirements  of  the  statute  for  the 
purpose  of  hindering  the  statute  made  to  prevent  frauds  from 
becoming  the  instrument  of  fraud,  it  will  never  do  so  in  the 
case  of  an  agreement  to  exchange,  unless  there  has  been  a  part 
performance  or  delivery  of  possession  made  in  pursuance  of  a 
prior  contract  conclusively  proved.*  Where  there  has  been  no 
part  execution  on  either  side,  nor  anything  but  a  breach  of 
promise,  the  relief  will  not  be  granted. 

§14.  Collateral  agreements.  Whilethetendency  of  courts 
is  to  increase  rather  than  relax  the  stringency  of  the  statute 
in  its  practical  application,  and  to  insist  upon  the  rule  which 
forbids  the  introduction  of  parol  testimon}''  to  limit,  impair  or 
otherwise  affect  the  operation  of  written  contracts,  yet  in  the 
matter  of  contemporaneous  or  subsequent  agreements  collateral 
to  and  growing  out  of  the  principal  contract,  when  they  do  not 
tend  to  contradict  or  impeach  such  contract,  a  marked  libcral- 

1  A  parol  reservation  of  ornamental  ute  of  frauds.  R.  R.  Co.  v.  Forbes, 
slirubbery    lield  invalid.      Smith   v.    30  Mich.  165. 

Price,  39  111.  28.  A  parol  reservation  2  Purcell  v.  Coleman,  4  Wall.  (U.  S.) 
of  a  barn  and  sheds  from  the  opera-   513. 

tion  of  a  deed  is  void  under  the  stat-      ^  Purcell  v.  Coleman,  4  Wall.  (U.  S.) 

513. 


VALIDITY    OF    LAND   CONTRACTS.  181 

ity  is  noticeable.  Where  such  collateral  agreements  do  not 
profess  to  be  for  the  conveyance  of  any  interest  in  the  land, 
notwithstanding  they  may  be  directl}'^  referable  to  it,  they  are 
permitted  to  rest  in  parol,  and  oral  testimony  will  be  received 
to  establish  them.  Thus,  an  agreement  between  the  parties 
to  a  previously-made  contract  for  the  sale  of  lands,  that  if, 
upon  a  survey,  the  tract  proves  larger  than  is  called  for  by  the 
contract,  the  purchaser  shall  pay  an  increased  price,  need  not 
be  in  writing,  as  it  is  not  a  contract  for  the  sale  of  lands,  and 
hence  not  within  the  statute;'  and  so  of  all  contracts  and 
agreements  made  with  reference  to  a  previous  contract,  but  not 
in  derogation  of  its  terms  or  calculated  to  impair  its  opera- 
tion.- 

Collateral  agreements  made  contemporaneously  with  the 
principal  agreement,  and  with  reference  thereto,  stand  on  the 
same  ground  as  subsequent  agreements  and  are  governed  by 
the  same  rules.' 

§  15.  Partnership  agreements  for  dealing  in  lands.  Upon 
the  question  as  to  whether  a  partnership  for  the  purpose  of 
dealing  in  real  estate  can  be  proved  by  parol  there  is  consid- 
erable conflict  of  authority.  On  the  one  hand  it  is  claimed 
that  a  parol  agreement  for  such  a  partnership  would  be  within 
the  statute  of  frauds,  which  provides  that  no  estate  or  interest 
in  lands  shall  be  created,  assigned  or  declared,  unless  by  act 

'  McCbnnell  v.  Brayner,  63  Mo.  v.  Brown,  3  Mo.  App.  20 ;  Ambler  v. 
461 ;  Sherrill  v.  Hagan,  92  N.  C.  345.    Cox,  20  N.  Y.  Sup.  Ct.  295. 

-An  agreement  between  the  grantor  3  A  grantee,  before  accepting  the 
of  lands  and  his  grantee  that  the  lat-  end  of  an  ungraded  lot  iu  a  city,  said 
ter,  in  consideration  of  the  convey-  to  the  grantor:  "You  have  to  pay 
ance,  shall  support  the  former  for  for  the  filling  in;"  to  which  the 
life,  is  not  within  the  statute  of  grantor  replied,  "  All  right,  I  will 
frauds,  but  may  be  oral.  Harper  v.  pay  it."  In  an  action  by  the  grantee 
Harper,  57  Ind.  547.  Nor  is  a  con-  to  recover  from  the  grantor  the 
tract  by  a  son  with  his  father  that,  in  amount  of  an  assessment  subse- 
consideration  of  a  conveyance  to  him  quently  laid  for  the  filling,  and  paid 
by  the  father,  he  will  release  to  his  by  theplaintifT, /u7d,  that  thedefeiid- 
brothers  and  sisters  all  claim  in  ex-  ant  was  liable,  as  on  a  valid  independ- 
pectaucy  to  the  residue  of  the  father's  ent  agreement,  to  pay  any  assesisnunt 
estate.  Galbraith  v.  McLain,  84  111.  for  filling  which  tiie  municipal  au- 
379.  Agreements  settling  doubtful  tlioritics  might  lay  upon  tlu?  lot. 
boundaries  may  be  valid  and  obliga-  McCormick  v.  Cheevers,  124  Mass. 
tory   though  not  in  writing.     Betta    262. 


182  CONTRACT   OF   SALE. 

or  operation  of  law  or  by  deed  of  conveyance  in  writing.*  On 
the  other  hand  it  is  contended  that  such  an  agreement  is  not 
affected  by  the  statute,  for  the  reason  that  the  real  estate  is 
treated  and  administered  in  equityas  personal  property  for  all 
the  purposes  of  the  partnership.'-  The  prevailing  o|)inion,  how- 
ever, would  seem  to  be  that  such  agreements  do  not  come 
within  the  meaning  of  the  statute,  since  neither  conveys  or 
assigns  any  land  to  the  other;  that,  as  between  the  partner- 
ship and  its  vendors  or  vendees  in  the  sale  or  purchase  of 
lands,  the  statute  in  all  cases  would  operate;  but  as  between 
the  partners  themselves,  when  they  are  neither  vendors  nor 
vendees  of  one  another,  it  would  not  affect  their  agreements.' 
In  like  manner  an  oral  agreement  whereby  one  is  to  nego- 
tiate the  purchase  of  land,  and  the  other  is  to  pay  the  price 
and  take  the  title,  and,  when  the  latter  shall  sell,  the  profits  to 
be  divided  between  thom,  is  not  within  the  statute  of  frauds,^ 
as  it  does  not  contemplate  that  the  negotiator  shall  have  any 
estate  or  interest  in  the  land  or  be  interested  in  any  way  in 
the  transaction,  unless  upon  a  sale  there  should  be  a  profit,  and 
then  only  in  the  profit.  Such  an  agreement  is  rather  one  of 
employment  or  agency  than  for  an  interest  in  real  estate. 
Nor  will  an}'-  trust  exist  in  respect  to  the  profits  other  than 
such  as  arises  upon  the  receipt  by  one  of  money  which  he  has 
agreed  to  pay  on  such  receipt  to  another.''  So,  also,  a  contract 
by  which  parties  agree  to  acquire  land  together,  one  furnish- 
ing the  certificate  and  the  other  the  labor  and  expense  of  sur- 
veying and  procuring  a  patent  for  it,  is  not  a  contract  for  the 
purchase  and  sale  of  lands  within  the  provisions  of  the  statute 

1  See  Smith  V.  Burnham,  3  Sumner  26;    Everhart's  Appeal,  106  Pa.  St. 

(C.  Ct.),  435.    An  agreement  by  parol,  349;  Babcock  v.  Read,  99  N.  Y.  609; 

under  which  one  is  to  buy  land  at  Richards  v.  Grinnell,   63  Iowa,  44; 

public  auction  on  the  joint  account  Gibbons  v.  Bell,  45  Tex.  417. 

of  himself  and  another,  held  to  be  ^  Snyder  v.  Wolford,  33  Minn.  175; 

within  the  statute  of  frauds.    Parsons  Benjamin   v.    Zell,    100  Pa.    St.    33; 

V.  Phelan,  134  Mass.  109.  Heyn  v.  Philips.  37  Cal.  529;  Gwalt- 

2 Bunnell  v.  Taintor,  4  Conn.  568;  ney  v.  Wheeler,  26  Ind.  415;  Lesly  v. 

Richards  v.   Grinnell,   63  Iowa,  44;  Rasson,  39  Miss.  368:  Bruce  v.  Hast- 

Patterson  v.  Wone,  10  Ala.  444.'  inga,  41  Vt.  380;  Trowbridge  v.  Weth- 

2 Chester  v.  Dickerson,  54  N.  Y.  1 ;  erbee,  11  Allen  (Mass.),  361;  Treat  v. 

Holmes  v.  McCray,  51  Ind.  358;  and  Hiles,  68  Wis.  344. 

see  Personette  v,  Pryme,  34  N.  J,  Eq.  &  Snyder  v.  Wolford,  33  Minn.  175. 


VAI.IDITV    OF    LAND    CONTKACTS.  183 

of  frauds.'  An  agreement  between  two  persons,  by  which  one 
is  to  purchase  land  on  the  joint  account  of  both,  and  each 
party  is  to  contribute  a  moiety  of  the  purchase  money,  and  the 
title  is  to  be  made  to  both  as  tenants  in  common,  is  not  within 
the  statute  of  frauds,  and  is  valitl  though  not  in  writinfr." 

It  is  important,  however,  that  the  inte^^rity  of  the  statute 
shall  be  preserved;  and  hence,  where  by  the  terms  of  the 
agreement  a  transfer  of  land  is  contemplated,  whether  the  title 
to  the  same  shall  be  vested  in  one  of  the  j^arties  to  such  agree- 
mejit  or  in  a  stranger,  it  is  a  contract  for  the  sale  of  an  inter- 
est in  land,  and  within  the  words  and  policy  of  the  statute.^ 

§  IG.  Aiite-niiptial  agreements.  By  the  fourth  section  of 
the  English  statute  of  frauds,  which  has  been  re-enacted  in 
some  of  the  states,  no  action  can  be  brought  to  charge  any 
person  upon  any  agreement  made  upon  consideration  of  mar- 
riage, unless  the  same  shall  be  in  writing  and  signed  by  the  per- 
son to  bo  charged.  Ante-nuptial  agreements  come  within  the 
provisions  of  this  section.  It  has  been  held  that  a  verbal  ante- 
nuptial agreement  might,  under  special  circumstances,  be  en- 
forced in  equity  to  prevent  the  perpetration  of  a  fraud ;  as, 
when  the  wife  has  by  some  artifice  or  trick  prevented  the 
contract  from  being  reduced  to  writing,  and  has  received  a 
substantial  benefit  from  it,  so  that  it  would  operate  as  a  fraud 
upon  the  husband.  In  such  case  there  would  appear  to  be  no 
doubt  of  the  power  of  a  court  of  equity  to  afford  the  proper 
relief,  notwithstanding  the  statute,  on  the  general  principle 
that  the  statute  is  never  to  be  so  expounded  as  to  make  it  a 
mere  instrument  in  consummating  a  fraud  upon  the  party 
against  whom  it  is  invoked.^ 

As  a  general  rule,  however,  a  mere  verbal  agreement  made 
before  marriage,  whereby  the  intended  wife  releases  and  re- 
nounces all  interest  in  the  proposed  husband's  estate,  is  obnox- 
ious to  the  statute  of  frauds;  nor  will  the  signing  of  an  ante- 

1  Gibbons  v.  Bell.  45  Tex.  417.    An  2  Le^y  v.  Brush,  8  Abb.  Pr.  (N.  Y.) 

agreement  between  two  or  more  per-  418. 

sons  to  explore  the   public  domain  ^Rawdon  v.  Dodge,  40  Midi.   607, 

and  discover  and  locate  lodes  for  the  and  see  Levy  v.  Brush,  45  N.  Y.  589; 

joint  benefit  of  all  is  not  within  the  Purcell  v.  Miner,  4  "Wall.  (U.  S.)  513. 

statute  of  frauds  and  need  not  be  in  *  McAnnuIty    v.    McAnnulty.    120 

in  writing.     Murley  v.  Ennis,  2  Col.  III.  26;  Jenkins  v.  Eldridge,  3  Story 

T.  300.  (C.Ct.),  181. 


184  CONTRACT   OF   SALE. 

nuptial  agreement  in  form,  after  marriage,  altliough  purporting 
to  have  been  executed  before  that  event,  have  the  effect  to  take 
a  verbal  agreement  of  the  same  effect,  made  before  marriage, 
out  of  the  statute.  The  execution  of  such  agreement  can  be 
regarded  no  further  than  a  mere  acknowledgment  in  writing 
of  the  terms  of  the  previous  verbal  agreement,  which  fails  to 
meet  the  requirements  of  the  statute.^ 

1  McAnnulty  v.  McAnnulty,  120  111.  26. 


EELATION    OF   THE    TARTIES. 


185 


CHAPTER  VI. 


THE   RELATION  OF  THE   PARTIES. 


§  1.     General! J'  considered. 

2.  Option  of  purchase. 

3.  When  equitable  title  vests. 

4.  Deatli  of  one  of  contracting 

parties. 

5.  Subsequent  insolvency  of  the 

parties, 

6.  Payment  of  taxes. 

7.  Interest  —  Rents  and  profits. 

8.  The  risk  of  loss. 

9.  Duty  of  repairing  buildings. 

10.  Right  of  possession. 

11.  Delivery  of  possession. 

12.  Rights  of  vendee  in  possession. 

13.  Vendee's  assertion  of  hostile 

title. 


g  14.     Vendee's    possession    not    ad- 
verse. 

15.  Vendee  may  attorn  to  stranger. 

16.  Judgments  against  vendor. 

17.  Judgments  against  vendee. 

18.  Vendor's  possession  after  eale. 

19.  Vendor's  possession  after  con- 

veyance. 

20.  Destruction      of      property  — 

Proceeds  of  insurance. 

21.  Effect  upon  insurance  of  pro- 

viso .igainst  sales, 

22.  Condemnation  proceedings. 

23.  Mechanics'  liens. 


§  1.  Generally  considered.  There  is  a  marked  difference 
as  to  the  rehitive  rights  and  liabilities  of  the  parties  in  the 
case  of  an  ordinary  executory  contract  at  law  and  in  equity 
At  law  the  contract  receives  only  the  interpretation  expressed 
upon  its  face,  and  confers  upon  the  parties  mere  rights  of  ac 
tion;  the  estate  remains  the  property  of  the  vendor,  and  the 
unpaid  purchase  money  that  of  the  vendee.'  But  in  equity 
the  positions  are  reversed:  the  estate  from  the  making  of  the 
contract  is  regarded  as  the  property  of  the  vendee,  attended 
by  most,  if  not  all,  of  the  incidents  of  ownership,  while  the 
purchase  money  is  considered  as  belonging  to  the  vendor.- 
This  result  is  accomplished  by  the  application  of  the  familiar 
principle  that  equity  looks  upon  things  agreed  to  be  done  as 
actually  performed;  and  hence  a  contract  for  the  sale  of  land 
is,  for  most  purposes,  regarded  in  equit}'  as  if  already  speciHc- 
ally  executed.^     This  doctrine,  though  but  a  legal  fiction  by 

'Lombard  v.  Sinai  Congregation,  112;    Dorsey    v.    Hall,   7    Neb.    4G4 ; 

61  111.  477.  Pease  v.  Kelly,  3  Oreg.  417;  Baum  v. 

2  Lombard  v.  Sinai  Congregation,  Grigsby,  21  Cal.  175. 

64111.  477;  King  v.  Ruckman,  21  N.  3  King  v.  Ruckman,  21  N.  J.   Eq. 

J.  Eq.  599;  Kerr  v.  Day,  14  Pa.  St.  599;  Kerr  v.  Day,  14  Pa.  St.  112. 


18G  CONTIIACT   OF    SALE. 

^vhicb  to  work  out  certain  ends  or  secure  the  attainment  of  a 
more  complete  administration  of  justice,  lias  raised,  as  a  cor- 
ollary of  its  application,  the  further  doctrine  that  the  vendee 
is  to  be  considered  as  trustee  of  the  purchase  money  for  the 
vendor,  and  the  vendor  in  turn  is  regarded  as  the  trustee  of 
the  land  for  the  vendee;^  and  this  trust  binds  and  adheres  to 
the  land  until  it  passes  into  the  hands  of  a  hmafide  purchaser 
for  a  valuable  consideration  without  notice.'-  The  relation, 
therefore,  is  analogous  to  that  of  equitable  mortgagor  and 
mortii'airee,  the  vendee  holding  the  legal  title  as  security  for 
the  unpaid  purchase  money,  which  security  is  essentially  a 
mortgage  interest.  The  vendee  has  an  equity  of  redemption, 
and  the  vendor  a  correlative  right  of  foreclosure  upon  default 
in  the  payments.''  But  in  this,  as  in  all  similar  cases,  the 
mortgage  is  the  incident,  the  debt  the  principal,  and  the 
vendor  has  no  further  interest  except  to  the  extent  of  the  se- 
curity the  mortgage  affords  for  his  debt.*  Subject  to  these 
rights  of  the  vendor,  the  vendee  has  absolute  control  of  the 
property,  and  may  dispose  of  it  or  incumber  it  in  exactly  the 
same  manner  as  land  to  which  he  has  the  legal  title.' 

But  while  the  vendee  may  sell  and  dispose  of  the  land,  sub- 
ject to  the  rights  of  the  vendor,  and  otherwise  assert  acts  of 
absolute  ownership  and  dominion,  he  has  no  authority  to  re- 
move annexations  of  a  permanent  character,  whether  made 
prior  or  subsequent  to  the  contract,**  or  to  impair  the  security 

1  Craig  V.  Leslie,  3  Wheat.  (U.  S.)  » Church  v.  Smith,  39  Wis.  492; 
578;  Maddox  v.  Rowe,  23  Ga.  431;  King  v.  Ruckman.  21  N.  J.  Eq.  599; 
Lombard  v.  Sinai  Congregation,  G4  Baldwin  v.  Pool,  74  III.  97;  Fitzhugh 
111.477.  It  is  upon  the  prhiciple  of  v.  Maxwell,  34  Mich.  133;  Dew  v. 
the  transmission,  by  the  contract,  of  Bellinger,  75  N.  C.  300;  Reed  v.  Lu- 
an  actual  equitable  estate,  and  tlie  kens,  44  Pa.  200 ;  Gary  v.  Whitney, 
impressing  of  a  trust  upon  the  legal  48  Me,  516;  Miller  v.  Corey,  15  Iowa, 
estate  for  the  benefit  of  the  vendee,  1C6;  Boon  v.  Chiles,  10  Pet.  (U.S.) 
that  the  doctrine  of  the  specific  per-  177;  Conner  v.  Banks,  18  Ala.  42. 
formance  of  contracts  for  tlie  sale  ^Strickland  v.  Kirk,  51  Miss.  795. 
and  conveyance  of  land  mainly  de-  ^  gjjjjvi'in  v.  Pool,  74  III.  97;  Smith 
pends.  Worrall  v.  Munn,.38  N.  Y.  v.  Price,  42  Hi.  399;  Ricker  v.  Moore, 
139;  Brewer  v.  Herbert,  30  Md.  3U1.  77  Me.  295. 

2  Wirabish  v.  Loan  Ass'n,  09  Ala.  « Smith  v.  Moore,  26  111.  392;  but 
575;  Baum  v.  Grigsby,  21  Cal.  175;  see  Raymond  v.  White,  7  Cow.  (N.  Y.) 
Lewis  V.  Hawkins,  23  Wall.  (U.  S.)  319. 

125;  Burch  v.  Carter,  44  Ala.  110. 


kel.vthjx  of  tiik  i'aktiks.  187 

it  afFords  by  waste;  for  as  lung  as  any  part  of  the  purchase 
money  remains  iipaid,  the  land  with  its  accretions  of  every 
character  remains  pledged  for  the  satisfaction  of  tlie  vendor's 
lien,  and  until  the  whole  of  the  purchase  money  has  been  paid 
the  vendor  is  not  a  mere  naked  trustee,  but  holds  and  retains 
an  interest  in  tlie  land.' 

^  2.  Option  of  piircliase.  The  remarks  of  the  foregoing 
paragraphs  have  reference,  however,  only  to  bilateral  con- 
tracts; for  an  agreement  whereby  the  owner  of  land  merely 
gives  to  a  prospective  vendee  the  right,  option  or  refusal  to 
purchase  at  any  time  in  the  future,  confers  upon  the  party 
having  such  option  no  interest,  either  legal  or  e(]uitable,  in  the 
land.  It  is  not  a  contract  of  sale  within  any  definition  of  the 
term,  and  at  best  but  gives  to  the  o|)tion-holder  a  right  to 
))ui'chase  upon  the  terms  and  conditions,  if  any,  specified  in 
the  agreement  or  proposal.  The  right,  to  be  made  available, 
must  be  exercised  at  or  within  the  time  specified  in  the  agree- 
ment, and  the  conditions  precedent,  if  any  are  annexed,  must 
be  faithfully  and  punctuall}^  observed."  A  partial  performance 
of  some  of  the  stipulations  which  it  is  intended  shall  form  a 
portion  of  the  future  contract  of  sale,  while  they  may  indicate 
an  intention  to  make  the  purchase,  does  not  confer  any  addi- 
tional rights  upon  the  prospective  pui'chaser  where  the  condi- 
tions ui)on  which  the  option  and  I'ight  of  purchase  depends 
have  not  been  complied  witli;  and  the  non-compliance  with 
such  conditions  is  a  sufficient  ground  for  a  denial  of  any  claim 
of  right  in  the  land  under  the  agreement.^  But  where  the 
owner  of  lands  gives  to  another  an  option  of  purchase,  and 
imposes  certain  conditions  upon  the  party  to  whom  the  option 
is  given,  which  have  been  by  him  did}-  observed  and  per- 
formed, a  different  relation  is  created.*  The  performance  of 
the  conditions  amounts  to  an  acceptance,  and  creates  a  mutual- 
ity and  a  consideration  for  the  agreement  to  conve}'.  The 
party  to  whom  the  offer  was  made  having  actually  done,  upon 
the  promise  of  the  owner,  what  he  required  to  have  done,  it  is 
then  too  late  for  the  owner  to  recede;  and  it  is  immaterial,  in 

iSwepson  V.  Rouse.  6.1  N.  C.  34.  SBostwick  v.  Iless,  80  111.  138. 

-Bostwick    V.    Hess,    80    III.    138;  <As   where  the  vendee  is  to  iin- 

Longfellow   v.   Moore,   102   111.    289 ;  prove  the  tract,  pay  taxes,  etc. 
Sutherland  v.  Parkins,  75  111.  338. 


188  CONTKACT   OF  SALE. 

such  event,  that  the  acts  were  performed  without  any  previous 
undertaking  on  the  part  of  the  vendee.^ 

It  will  further  be  observed  that  a  mere  offer  to  sell,  unless 
otherwise  expressly  provided,  is  personal  in  its  nature  and 
confined  to  the  option-holder;  and  hence,  if  the  one  possessing 
such  privilege  fails  to  exercise  it  during  the  period  limited  for 
acceptance,  or  dies  within  such  period  without  accepting,  he 
has  no  estate  in  the  land  which  can  descend  to  his  heirs,  nor 
will  they  have  any  right  to  accept  the  proposal  within  the 
time  allowed  their  ancestor.^ 

§  3.  When  equitable  title  vests.  The  oft-asserted  proposi- 
tion that,  from  the  time  of  the  contract  for  the  sale  of  land, 
the  vendor  as  to  the  land  becomes  a  trustee  for  the  purchaser, 
and  the  latter  as  to  the  purchase-money  bacomes  a  trustee 
for  the  vendor,  w^ho  has  a  lien  upon  the  land  therefor,  while 
fully  expressing  the  rule  of  equity  in  its  general  application, 
is  nevertheless  subject  to  some  qualification  under  special  cir- 
cumstances, and  is  not  of  such  potency  as  to  establish  an  equi- 
table title  in  the  purchaser  in  opposition  to  expressed  intent  or 
clear  legal  implication.  The  essential  feature  of  an  equitable 
title  is  that  it  is  one  which  appeals  to  equity  for  confirmation 
and  enforcement.  Hence,  a  mere  contract  or  covenant  to 
convey  at  a  future  time,  on  the  purchaser  performing  certain 
acts,  does  not  create  an  equitable  title.  It  is  only  when  the 
purchaser  performs  or  tenders  performance  of  all  the  acts  nec- 
essary to  entitle  him  to  a  deed  that  he  has  an  equitable  title 
and  may  compel  a  conveyance.  Prior  thereto  he  has,  at  best, 
only  a  contract  for  the  land  w^hen  he  shall  have  performed  his 
part  of  the  agreement.^ 

§  4.  Death  of  one  of  contracting  parties.  In  framing 
agreements  for  the  purchase  of  land  it  is  an  almost  universal 
custom  for  the  parties  to  contract  as  well  for  their  heirs  and 
personal  representatives  as  for  themselves;  and  even  though 
this  formality  be  omitted  from  the  memorandum,  the  result 
will  be  the  same;  for  the  law  presumes  that  the  contingency 
of  death  was  present  in  their  minds,  and  that  they  intended 
to  bind  not  only  themselves,  but  those  into  whose  hands  the 

1  Perkins  v.  Hadsell,  50  111.  216.         But  see,  contra,  Kerr  v.  Day,  14  Pa. 

2  Sutherland  v.  Parkins,  75  111.  338.    St.  112. 

3Chappell  V.  McKuight,  108111.  570. 


RELATION    OF    Till-:    PARTIES.  1S9 

property  might  fall  in  the  event  of  death  prior  to  execution. 
Indeed,  the  executor  or  administrator,  for  all  practical  pur- 
])oses,  is  the  decedent  himself  and  is  liable  in  general  to  the 
e.xtent  of  the  assets  which  ma}^  come  to  his  hands  upon  all 
contracts  of  the  deceased  remaining  undischarged  at  his 
death.! 

To  the  general  proposition  as  last  stated  there  is  but  one 
well-established  exception,  and  this  arises  only  when  the  per- 
formance of  the  contract  is  personal  in  its  nature.  Just  what 
constitutes  this  exception  the  authorities  do  not  inform  us 
with  any  degree  of  certainty  or  particularit}",  but  the  illustra- 
tions ordinarily  put  of  personal  contracts  on  which  no  liability 
attaches  to  the  legal  representatives,  unless  a  breach  occurred 
in  the  life-time  of  the  deceased,  indicate  those  only  which  re- 
quire individual  skill  or  knowledge,  or  services  which  the  con- 
tractor alone  can  perform.-  So  far  as  the  obligation  is  to 
convey  real  estate,  of  course  these  would  not  apply;  yet  in 
cases  of  bilateral  contracts  they  might  play  an  important 
part,  the  inability  of  performance  on  one  side  excusing  or  pre- 
venting performance  on  the  other. 

The  mere  fact  of  personal  service  is  not  the  controlling  test, 
however,  and  if  tlie  contemplated  services  are  of  such  a  nature 
that  they  may  be  performed  by  others,  the  reason  of  the  rule 
does  not  ai)ply  and  the  contract  will  survive;"'  3'et  the  whole 
question  in  every  case,  from  the  difficulties  which  surround 
its  solution,  must  necessarily  depend  upon  attendant  circum- 
stances and  the  manifest  intention  of  the  parties.^ 

The  vendor,  being  regarded  simply  as  a  trustee  having  an 
interest  in  the  proceeds,  but  not  in  the  land,  this  interest  would 
pass  upon  his  death  to  his  personal  representatives,  and  not  to 
his  heirs;  and,  while  the  heirs  would  take  the  legal  title  by 
descent,  yet  they  would  hold  such  title  only  as  it  was  vested 
in  the  ancestor,  which  was  only  as  a  mere  security  for  a  debt. 

iPlialnian    v.    King,   49    111.    2G6;  N.    Y.    4-58 ;    Wright   v.    TinsK-y,    30 

Brown    v.    Leuvitt,    26    N.    H.    493;  Miss.  389. 

Green  v.  Rugley,  23  Tex.  539;  Bil-  -Janin  v.  Browne,  59  Cal.  44;  Bil- 
lings' Appeal,  lOGPa.  St.  558;  Fowler  lings'  Appeal,  100  Pa.  St.  558. 
V.  Kelly,  3  W.  Va.  71 ;  Bell  v.  Hewitt,  3  Hawkins  v.  Ball's  Adm'r,  IS  B. 
24  Ind.  280;  Hiatt  v.   Williams,   72  Men.  (Ky.)  816;  Janin  v.  Browne,  59 
Mo.   214;    Stephens  v.   Reynolds,   6  Cal.  44. 

<  Billings'  Appeal,  106  Pa.  St.  558. 


190  CONTRACT   OF    SALE. 

The  debt,  it  is  true,  would  be  paj^'ible  to  the  executor  or  ad- 
ministrator of  the  vendor;  but  as  the  lien  is  considered  to  be 
held  b}'-  the  heirs  in  trust,  and  simply  as  a  pledge  or  security 
for  its  payment,  on  the  payment  of  the  debt  the  heirs  would 
be  compelled  in  equity  to  execute  tlie  trust  by  the  conveyance 
of  the  title,  while  the  purchase  money  would  go  to  the  per- 
sonal i-eproscntatives.'  The  theory  upon  which  this  proceeds 
is  that  a  valid  contract  works  an  equitable  conversion  of  land 
into  personalty  from  the  time  it  is  made,  and  hence  the  pur- 
chase money  becomes  a  part  of  the  vendor's  estate,  and  is  dis- 
tributable upon  his  death  among  his  legatees  or  next  of  kin.- 

The  equity  which  is  vested  in  the  vendee  is  a  proper  subject 
of  devise  by  him,  and  will  descend  to  his  heirs  the  same  as 
realty.  The  same  rights  which  were  possessed  by  their  an- 
cestor will  devolve  on  them,  and  they  mav  have  an  enforce- 
ment of  the  contract  in  their  own  favor.  Hence,  where  there 
is  a  contract  for  the  purchase  of  land,  inasmuch  as  it  descends 
in  equity  to  the  heirs  of  the  vendee  as  real  estate,  they  may 
call  on  the  executors  or  administrators  to  discharge  the  con- 
tract out  of  the  personal  estate  so  as  to  enable  them  to  de- 
mand a  conve^'ance  from  the  vendor.^ 

§  5.  Subseiiueiit  insolvency  of  tlie  parties.  If  after  the 
contract  has  been  entered  into  either  vendor  or  vendee  should 
become  bankrupt,  the  contract  will  not  be  for  that  reason  dis- 
charged or  otherwise  materially  affected.  An  adjudication  in 
bankruptcy,^  as  well  as  an  assignment  for  creditors,  has  the 
effect  of  an  absolute  conveyance  by  which  all  the  estate  of  the 
bankrupt  is  vested  in  the  assignee;  but  the  title  in  the  bands 
of  the  assignee  is  relieved  of  none  of  its  burdens.'  It  is  no 
better  than  that  held  by  the  bankrupt,  and  if  sold  by  such  as- 
signee the  ]3urchaser  takes  it  charged  with  all  the  equities  to 
which  it  was  originally  subject.*^     The  theory  is  that  an  as- 

1  Johnson  t.  Corbett,  11  Paige  (X.  Carty  v.  Meyers,  5  Hun  (N.  Y.),  83. 

Y.).  2G5;  Moore  V.  Burrows,  34  Barb.  -^Miller    v.    Miller,    25    N.   J.    Eq. 

(N.  Y.)  173;  Craig  v.  Leslie,  3  Wheat.  GGo. 

(U.  S.)  563;  Miller  v.  Miller,  25  N.  J.  ^Champion  v.  Brown,  6  Johns.  Ch. 

Eq.  354.     A  vendor  may  devise  land  (N.  Y.)  SO.-*. 

contracted  to  be  sold  to  another  per-  ■*  At  tlie  date  of  this  writing  there 

son,  but  the  devisee  will   take  the  exists  no  national  bankrupt  law. 

title  charged  with  a  trust  for  the  j  Williams  v.  Winsor,  12  R.  I.  9. 

benefit  of  the  contract  vendee,     ^l  -  •'Walker   v.    Miller,  11   Ala.  1076: 


BEr.ATIOX    OF    TIIK    I'AKTIES.  llfl 

signec  docs  not  take  title  as  an  innocent  purchaser  without 
notice,  free  from  latent  equities,  etc.,  but  as  a  mere  volunteer 
standing  in  the  shoes  of  the  Imnkrupt,  as  respects  the  title  and 
having  no  greater  rights  in  that  regard  than  the  bankru|)t 
himself  could  assert.^  As  between  the  assignee  and  a  vendee 
of  the  bankrupt  the  rights  of  such  vendee  will  remain  intact, 
notwithstanding  he  may  have  neglected  to  ])lace  upon  record 
the  evidence  of  his  claim;  as  between  him  and  a  purchaser 
from  the  assignee  his  rights  will  still  be  preserved  if  he  has 
taken  the  ])recaution  to  impart  notice  by  any  of  the  methods 
Avhich  the  law  directs,  upon  the  principle  that  every  subse- 
quent purchaser  from  the  vemlor,  with  notice,  becomes  subject 
to  the  same  equities  as  the  party  from  whom  he  purchased ; 
but  if  the  land  is  conveyed  to  an  innocent  purchaser  without 
notice,  who  jilaccs  his  deed  upon  record  before  that  of  the  prior 
purchaser,  such  prior  purchaser  could  not  set  up  or  show  an 
unrecorded  deed  or  agreement  to  defeat  the  title  of  the  as- 
si":nee's  <jrantec.- 

§  6.  Payment  of  taxes.  The  payment  of  taxes  is  a  legal 
duty  devolving  upon  each  and  every  person  legally  or  equ  - 
tabl}'  interested  in  the  land  charged  by  the  tax.  Primarily 
the  duty  of  pa^'ing  the  same  rests  upon  the  person  who  holds  the 
legal  title,  and  in  the  assessment  and  levy  of  the  tax  such  per- 
son is  usually  designated  by  name.  In  this  case  the  dut\'  is  a 
direct  legal  obligation,  enforceable,  if  necessary,  in  an  action  of 
debt;  and  the  obligation  is  equally  binding  upon  a  vendee  who 
has  stipulated  or  agreed  to  pay  the  same.^  A  vendee,  prior  to 
cohveyance,  who  has  not  so  agreed,  will  not  be  directly  respon- 
sible for  such  tax;  yet  if  his  vendor  should  neglect  to  pay  the 
same,  and  to  protect  his  equity,  and  the  vendee  is  obliged  to 
discharge  the  tax,  he  will  be  considered  only  as  having  per- 
formed a  duty  incumbent  upon  him  as  a  party  in  interest.  He 
may  have  recourse  over  against  his  vendee  under  his  cove- 
nants, but  as  respects  the  title  he  can  gain  no  advantage.  lie 
cannot  become  a  ])urcliaser  at  any  sale  held  for  such  taxes; 
and,  should  he  become  such,  the  payment  of  the  money  will 
be  regarded  only  as  a  i)ayment  of  the  tax,  and  not  as  a  pur- 
Stow  v.  Yarwool,  20  III.  497;  ILudin  2Holbrook  v.  Dickenson,  5G  III. 
V.  O.sborne,  94  HI.  571.  497. 

1  Hardin  v.  Osborne,  94  111.  371.  3  Fitzgerald  v.  Spain,  30  Ark.  334. 


192  CONTKACT   OF   SALE. 

chase  of  the  property/  As  between  the  parties,  all  payments 
of  taxes  made  by  the  vendee  are  presumed  to  be  made  on  be- 
half of  the  vendor.- 

As  between  vendor  and  vendee,  prior  to  conveyance,  the 
question  as  to  who  shall  pay  the  current  taxes  does  not  seem 
to  be  of  frequent  occurrence  in  the  courts.  It  is  usually  made 
the  matter  of  a  special  stipulation  in  uf^reements  for  convey- 
ance, and  in  cases  where  this  has  been  omitted  is  regarded  as 
a  duty  incumbent  on  the  vendor,  who  must  of  necessity  pay 
the  taxes  levied  or  assessed  at  the  time  of  his  deed  in  order  to 
keep  good  the  covenants  therein  contained.  It  has  been  held, 
however,  that  in  contracts  for  the  sale  of  land,  silent  as  to  the 
payment  of  tax3s,  the  part}''  in  the  actual  possession  of  the 
land  should  keep  down  the  taxes,^  and  that  where  the  land  is 
vacant,  a  vendee,  who  by  full  performance  on  his  part  is  en- 
titled to  possession  by  implication  of  law,  should  thereafter 
pay  the  taxes.* 

In  agreements  for  exchange  it  is  usual  to  make  specific  men- 
tion of  the  taxes  and  to  provide  for  their  payment;  but  unless 
it  clearly  appears  as  to  what  lands  each  of  the  parties  is  to  as- 
sume the  taxes,  or  where  the  matter  is  referred  to  only  in  gen- 
eral terms,  it  will  be  considered  that  the  stipulation  applies  to 
the  property  each  party  is  selling  and  not  to  what  each  is  re- 
ceiving.'^ 

§  7.  Interest  —  Rents  and  profits.  Where  a  speedy  con- 
summation of  the  sale  is  contemplated  it  is  not  customary,  as 
contracts  are  now  drawn,  to  stipulate  for  interest  on  the  one 
hand  or  with  respect  to  rents  and  profits  on  the  other.  The 
vendor  usuall}'  remains  in  the  possession  of  the  property,  while 
the  vendee,  with  the  exception  of  whatever  may  have  been 
paid  by  the  way  of  earnest,  retains  the  purchase  money.  Yet, 
as  equitv  regards  as  actually  performed  that  which  is  agreed 
to  be  done,  it  would  seem  that  a  purchaser  is  entitled  to  the 

1  See  Bailey  v.  Doolittle,  24  111.  577;  *  Sherman  v.  Savery,  2  Fed.  Rep. 
Glaney  v.  Elliott,  14  111,  450;  Bal-  505.  Further  held  in  this  case  that  it 
lame  v.  Forsythe,  13  How.  (U.  S.)  18;  is  no  defense  against  such  obligation 
Fitzgerald  v.  Spain,  30  Ark.  334;  that  the  vendor  refused  to  convey  to 
Wiilianis  v.  Townsend,  31  N.  Y.  411.  him,  but  conveyed  to  another  against 

2  Lamborn  v.  Dickenson  County,  whom  a  decree  for  specific  perform- 
97  U.  S.  181.  ance  was  afterwards  entered. 

sFarber  v.  Purdy,  69  Mo.  601.  5  Morrison  v.  Wasson,  79  Ind.  477. 


RELATION   OF   THE   PARTIES.  193 

|3rofits  of  the  estate  from  the  time  fixed  upon  for  completing 
the  contract;  and  as  the  money  from  that  time  belongs  to  the 
vendor,  the  purcluisor  sliould  be  compelled  to  pay  interest  for 
it.'  Certainly  this  should  be  the  case  where  unavoidable  long 
delays  intervene,  or  where  dela}'  is  attributable  to  the  fault  or 
neglect  of  either  party,  the  other  party  being  in  no  way  blam- 
able. 

As  a  general  rule  interest  on  the  purchase  money  should 
commence  when,  b}''  the  terms  of  the  contract,  such  money  is 
due;-  and  if  the  delay  in  completing  the  contract  is  attributa- 
ble to  the  purchaser,  he  will  be  compelled  to  pay  interest  from 
the  time  the  contract  ought  to  have  been  carried  into  effect, 
although  the  money  may  have  been  l3Mng  ready  and  without 
interest  being  made  of  it.  But  if  the  delay  has  been  occa- 
sioned by  default  of  the  vendor,  and  the  money  has  been  kept 
ready  and  unproductive  in  the  hands  of  the  purchaser,  he  will 
not  be  obliged  to  pay  interest.^  It  seems,  however,  that  the 
purchaser  should,  in  general,  give  notice  to  the  vendor  that 
the  money  is  ready  and  producing  nothing;^  for  otherwise  it 
is  said  there  is  no  equity,  as  the  one  knows  the  estate  is  pro- 
ducing profit,  while  the  other  does  not  know  that  the  money 
does  not  produce  interest;^  yet,  even  though  such  notice  be 
given,  if  the  money  is  not  actually  and  in  good  faith  appro- 
priated for  the  purchase  — if  the  vendee  uses  it  in  any  manner 
so  as  to  gain  some  advantage  from  it  —  he  may  still  be  com- 
pelled to  pay  interest.'* 

If  no  time  be  limited  for  the  performance  of  the  agreement, 
if  the  purchaser  is  let  into  possession  thereunder  he  shouUl 
pay  interest  on  the  unpaid  prirchase  money  from  that  time,' 
as  in  contemplation  of  law  he  is  in  the  enjoyment  of  the  rents 
and  profits  of  the  land.     In  cases  of  vacant  property,  wild, 

'  See  Parke  v.   Leevvright,  20  Mo.  *  Brockenbrough  v.  Blythe,  3  Leigli 

85;  Hundley  v.  Lyons,  5  Munf.  (Va.)  (Va.),  619. 

34a;  Cleveland  v.   Burrell,  25  Barb.  VSelden   v.  Jaines,  6  Rand.   (Va.) 

(N.  Y.)  532;   Hepburn  v.   Dunlap,   1  465:  Hunter  v.  Bales,  34  Ind.  299. 

Wheat.  (U.  S.)  179.  «  Davis  v.  Parkc-r.  14  Allen  (Mass.), 

-Baxter  v.   Brand,  6  Dana  (Ky.),  104. 

298.  '•  Stevenson  v.   Maxwell,  2  Conist. 

3  Hunt  V.   Brand.  1   A.    K.    Mixvsh.  (N,  Y.)  408;  Ram.say  v.  Brailsford,  2 

(Ky.)  161;  McKay  v.  Meivin,  1   Ired.  Des.  (S.  C.)  592;  Hundley  v.   Lyons, 

(N.  C.)  73.  5  Munf.  (Va.)  342. 
13 


194  CONTKACT   OF    SALE. 

uncultivated  or  unproductive  real  estate,  it  has  been  held  that 
a  contract  to  pay  interest  will  not  be  implied  vvdiere  the  pur- 
chaser is  prevented  from  obtaining  title  by  the  fault  or  neg- 
ligence of  the  vendor,  notwithstanding  such  purchaser  has 
been  in  possession ;  •  but  ordinarily  the  rule  first  stated  will  ap- 
])ly,  and  it  must  be  a  strong  case,  clearly  made  out,  in  which 
the  purchaser  will  not  be  obliged  to  pay  interest  w^here  he  has 
received  the  rents  and  profits.' 

"With  respect  to  interest  payable  by  the  vendor  the  cases  are 
rare  where  this  wnll  prevail.  The  deposit,  by  the  terms  of  the 
agreement,  is  usually  forfeited  to  the  vendor  in  case  of  non- 
compliance on  the  part  of  the  vendee,  and  where,  through 
failure  of  title  or  other  inability  by  the  vendor  to  consummate 
the  sale  according  to  the  terms  of  the  contract,  the  deposit  is 
usually  returned  without  allowance  for  its  use.  It  has  been 
held,  however,  that  where  a  purchaser  is  entitled  to  recover  at 
law  a  deposit  paid  by  him  to  the  vendor,  he  can  also  recover 
interest  on  it  from  the  time  it  was  paid,  without  an  express 
agreement.* 

It  would  seem  to  be  the  rule  in  England  that  if  a  vendor 
cannot  make  a  good  title,  and  the  purchaser's  money  has  been 
lying  ready  without  interest  being  made  by  it,  the  vendor  must 
pay  interest  to  the  purchaser;*  and  this  has  been  recognized  to 
some  extent  in  this  country.^ 

The  right  to  rents  and  profits  accrues  when  the  purchaser  is 
entitled  to  possession,'^  and  a  vendor  retaining  the  possession 
shall  account  to  the  purcliaser  for  the  rents  and  profits  from 
the  time  possession  was  to  have  been  surrendered.'^     If  in  the 

1  Stevenson  v.   Maxwell,  3  Sandf.  (Ky.),  375.     Where  the  vendor  is  in- 

Ch.  (N.  Y.)  273.  debtee!  to  the  vendee  and  the  sale  is 

2Selden  v.  James,  6  Rand.  ,(Va.)  made  in  order  to  pay  the  debt,  the 

465;    Cullum    v.    Bank,  4    Ala.  22;  vendor  must  pay  interest  from  the 

Boyce  v.  Britcliett,  6  Dana  (Ky.),  231.  time  the  debt  is  liquidated  until  he 

A  vendee,  who  enjoys  the  estate  and  makes  a  good  title;  and  the  vendee  is 

withholds  the  purchase  money  until  accountable  for  the  rents  and  profits 

a  dispute  in  the  title  is  adjusted,  from  the  time  the  title  is  perfected 

ought  to  pay  interest.    Breckenridge  until  the  contract  is  specifically  per- 

v.  Hoke,  4  Bibb  (Ky.),  273.  formed.       Hepburn     v.    Dunlap,    1 

3 See  Teaffe  v.  Simmons,  11  Allen  Wheat.  (U.  S.)  179. 

(Mass.),  842.  6  Baxter  v.  Brand,  6  Dana(Ky.),  298. 

*  2  Sugd.  Vend.  330.  '  Mason  v.  Chambers,  3  T.  B.  Men. 

*See  Williams  v.  Rogers,  2  Dana  (Ky.)  323. 


RELATION    OF    THE    PARTIES.  105 

contract  no  day  is  specified  for  delivering  the  deed  and  the 
surrender  of  possession,  but  the  money  is  to  be  paid  on  deliv- 
ery of  the  deed,  it  must  be  understood  that  the  deed  is  to  be 
delivered  and  possession  given  without  delay.  If,  therefore,  this 
be  not  done,  the  vendor  is  bound  to  account  for  and  pa}'  over 
the  profits  of  the  land  received  by  him  after  the  contract  was 
made  —  the  vendee,  of  course,  to  ])ay  interest  on  the  money  from 
the  time  it  would  have  been  payable  if  the  deed  had  been  im- 
mediately delivered.^ 

AVhen  a  contract  for  the  sale  of  land,  which  the  purchaser 
has  paid  for  and  was  put  in  possession  of,  is  rescinded  for 
causes  free  of  fraud,  the  use  of  the  monex'  and  the  use  of  the 
land  are  held  to  balance  each  other.  The  decree  should  in 
general  restore  the  money  to  the  purchaser  without  interest, 
and  the  land  to  the  vendor  without  rents  or  profits.  But  if 
the  ])urchaser  has  made  valuable  and  lasting  improvements  on 
the  land,  or  if  it  has  suffered  in  his  hands  through  neglect  or 
mismanagement,  then  these  things  are  the  subject  of  valua- 
tion, account  and  final  settlement  by  the  decree.- 

§  8.  The  risk  of  loss.  As  the  property  is  regarded  as  be. 
longing  to  the  vendee  from  the  time  of  the  delivery  and 
acceptance  of  the  written  contract,  it  follows  that  any  loss 
arising  from  deterioration  between  the  agreement  and  convey- 
ance falls  upon  and  must  be  borne  by  him.'  Hence,  if  any  of 
the  buildings  or  improvements  are  destroyed  by  fire  during 
this  period  the  vendee  must  bear  the  loss,^  unless  there  is  an 
agreement  to  deliver  possession  with  improvements  in  the 
same  condition  as  at  the  time  of  sale,^  or  unless  the  loss  occurs 
by  the  culpable  negligence  of  the  vendor.''  It  is  the  duty  of 
the  vendee  to  protect  himself  against  loss,  and  failing  in  this 
he  must  bear  the  same  if  any  is  entailed. 

This  rule,  in  its  application,  presupposes  an  ability  and  a 
willingness  to  convey  on  the  part  of  the  vendor;  for  the  pur- 
chaser in  a  case  of  this  kind  can  only  be  said  to  be  owner  from 

iHunflley  v.  Lyons,  5  Munf.  (Va.)  Bautz  v.   Kuhworth,  1  Mon.  J.  138; 

3-t2.  Brewer  v.  Herbert,  30  Md.  301. 

2  Williams  v.  Rogers,  2  Dana  (Ky.),       SGotkhird  v.  Bebout,  40  Ind.  115. 
375.  6  ]\iarks  v.  Tichenor,  4  S.  W.  Rep. 

3  Reed  v.  Lukens,  44  Pa.  St.  200.         (Ky.)  225.     But  see,  contra,  Wells  v. 
*  Snyder  v.   Murdock,   51  Mo.   175;    Calnan,  107  Mass.  514. 


1\)G  CO.NTKACT    OF    SALK. 

the  date  of  the  contract,  when  the  vendor  is  prepared  to  con- 
vey a  clear  title  and  is  not  in  default.  If  the  vendor  is  so  sit- 
uated that  he  cannot  make  title  according  to  the  contract,  the 
purchaser  will  not  be  regarded  as  the  owner;  and  if  the  prop- 
erty is  damaged  before  the  vendor  is  in  condition  to  convey, 
the  loss  must  fall  on  him  and  not  on  the  purchaser.* 

§  9.  Duty  of  repairing  buildings.  It  would  seem  that  a 
party  agreeing  to  sell  and  convey  premises  at  a  future  day 
does  not,  in  the  absence  of  stipulations  to  that  effect,  owe  the 
vendee  any  duty  to  keep  them  in  good  repair  or  to  guard 
against  the  decay  which  is  due  to  time  and  ordinary  use.- 

§  10.  Bight  of  possession.  It  is  a  rule  of  law  that  the  legal 
title  of  land  draws  to  it  the  right  of  possession,  and  wherever 
this  title  rests  there  also  lies  the  right  of  possession  and  occu- 
pancy. Hence,  the  mere  purchase  of  land  does  not  authorize 
the  purchaser  to  enter  into  possession  without  license  from  the 
seller.^  Such  license  may  be  express  or  implied  from  the  cir- 
cumstances;'' but  a  simple  agreement  to  convey  title  at  some 
future  day  does  not  in  itself  confer  it,  and  if  unaided  by  other 
facts  is  no  evidence  of  possessory  rights.^  The  purchaser  may 
enter  under  such  license,  but  his  possession  is  after  all  only  the 
possession  of  the  vendor.  By  the  purchase  he  recognizes  the 
vendor's  title,  and,  like  a  tenant,  in  all  proceedings  for  the  re- 
covery of  the  possession  by  the  vendor,  he  is  esto})ped  from 
disputing  his  title.  He  enters  and  holds  under  the  title  of  the 
vendor,  and  his  occupancy  is  subservient  and  subordinate  to 
that  title;  and  from  this  relation  and  for  the  same  reason  his 
possession  becomes  as  fully  that  of  the  vendor  as  does  that  of 
a  tenant  become  that  of  the  landlord."  Still,  as  the  vendor, 
though  in  law  the  owner  of  the  legal  title,  holds  it  in  equity 
simply  as  the  trustee  of  his  vendee,  it  has  been  held  that  he 
cannot  turn  his  beneficiary  out  of  possession  so  long  as  the 
latter  offers  to  perform  the  contract.'^ 

1  Christian  V.Cabell,  22  Gratt.(Va.)  5  chappell   v.    McKnight,   108   111. 

82;  and  see  Huguenin  v.  Courtenay,  570;  Suffern  v.  Townsend,  9  Johns. 

21  S.  C.  403.  (N.  Y.)  35 ;  Erwin  v.  CUustead,  7  Cow. 

2Hellreigelv.  Manning,  97N.  Y.  56.  (N.  Y.)  229;  Druse  v.    Wheeler,    22 

aChappell   V.    McKnight,    108    III.  Mich.  439. 

570;  Williams  v.  Forbes,  47  III.  148;  e  Hale  v.  Gladfelder,  53  III.  91. 

Druse  v.  Wheeler,  22  Mich.  439.  ^  Whittier  v.  Stege,  61  Cal.  238. 

*Chappell  V.  McKnight,  108  111.  570. 


JiKLATIO.V    OF    THE    I'AKTIKS.  197 

It  has  been  held  that,  notwithstandiu;^^  the  rule  whereby 
possession  follows  the  legal  title  as  an  incident,  if  the  land  is 
vacant,  and  the  vendee  has  paid  the  entire  consideration  and 
fully  performed  on  his  part,  and  all  that  remains  for  the  vendor 
to  do  is  to  give  the  deed,  there  must  be  am  implied  agreement 
or  license  that  the  vendee  may  at  once  take  possession  and 
have  the  use  of  the  land.^  An  implied  right  of  possession 
may  also  result  from  a  fair  construction  of  the  contract.  Thus, 
a  contract  which  reserves  to  the  vendor  the  right  of  re-entry 
in  case  the  ])urchascr  makes  default  in  his  ])ayments,  and  a 
right  of  distress  upon  the  premises  for  arrears  of  interest,  or 
provides  that  on  default  the  purchaser  may  be  regarded  as  a 
tenant  holding  over  without  permission,  and  for  the  recovery 
of  damages  for  waste,  gives  the  vendee  the  right  of  posses- 
sion by  necessary  implication,  where  it  fails  to  so  in  express 
terms.- 

A  more  radical  view  has  been  taken  of  the  vendee's  posses- 
sory rights  in  some  of  the  states,  and  the  reservation  of  in- 
terest on  the  purchase  money  has  been  offset  by  allowing  the 
purchaser  to  use  the  premises." 

§  11.  Delivery  of  possession.  No  formality  of  any  kind 
is  now  required  to  place  a  purchaser  in  possession.  The  de- 
livery of  a  key  by  the  vendor  at  the  conclusion  of  a  treaty 
for  the  sale  of  property  is  a  symbol  indicative  of  the  delivery 
of  the  possession  of  the  house  or  premises  i)urchased  to  which 
the  key  belongs.* 

§  12.  Rights  of  vondoe  in  possession.  "Where  the  purchaser 
has  been  let  into  possession  he  is,  in  equity,  the  owner,  subject 
only  to  the  lien  of  the  vendor  for  the  unpaid  purchase  money. 
He  has  a  right  to  the  free  use  and  enjoynient  of  the  property", 
and  to  the  rents,  issues  and  profits  thereof,  so  long  as  he  is  not 
in  default  under  the  contract.  He  may  mortgage  it  for  the 
payment  of  his  debts  ;^  may  sell  and  assign  his  rights  to  an- 
other; or  may  create  a  privilege  or  casement  u]ion  any  jiart  of 
the  premises  which  will  be  valid  and  binding,  but  liable  to  be 
defeated  should  there  be  a  failure  to  pa}""  the  balance  of  the 

1  IMillcr  V.  Ball,  G4  N.  Y.  293:  Siior-       *  Canal  Co.  v.  State.  53  Ind.  57o. 
man  v.  Savery,  2  Fori,  Rep.  505.  »  Baker  v.  Bishop  Hill  Colony,  45 

2  Martin  v.  Scofield,  41  Wis.  167.        111.  264. 
»  Drake  v.  Barton,  18  Minn.  462. 


108  CONTKACT   OF   SALE. 

purchase  money  according  to  the  terms  and  conditions  of  the 
contract  of  purchase.*  The  vendor,  in  such  a  case,  cannot  in- 
terfere with  the  free  use  and  enjoyment  of  the  premises  by  the 
vendee,  or  with  any  one  having  a  privilege  from  such  vendee, 
provided  that  there  is  no  lessening  of  the  security  for  the  pur- 
chase money  occasioned  thereby ;  -  nor  will  he  be  permitted  to 
invade  the  possession  of  the  vendee  or  his  assigns,  and  remove 
any  of  the  natural  or  artificial  objects  upon  the  land.^ 

§  13.  Vendee's  assertion  of  hostile  title.  It  may  be  stated 
as  a  general  rule,  that,  while  the  contracting  parties  are  in 
most  respects  supposed  to  stand  upon  a  footing  of  equality,  by 
which  each  is  entitled  to  the  benefit  of  his  own  judgment  and 
the  fruits  of  his  own  prudence  and  sagacity,  yet  with  regard 
to  the  property  the  relation  is  strictly  confidential,  and  imposes 
upon  either  party  the  due  observance  of  corresponding  duties. 
In  furtherance  of  this  principle  we  find  authorities  announc- 
ing the  doctrine  that  a  vendee  will  not  be  permitted  to  buy  an 
outstanding  incumbrance  or  other  hostile  claim,  and  set  up  an 
adverse  title  under  them  against  his  vendor,*  and  that  in  case 
he  should  attempt  so  to  do  such  acquisition  will  be  considered 
as  having  been  made  for  no  other  purpose  than  the  protection 

1  As  where  the  vendee,  upon    re-  264;    Whittington  v.    Sunmons,    32 

ceiving  a  bond  for  a  deed,  was  let  into  Ark.  377. 

possession,  and  while  so  in  possession,  ^  Baldwin  v.  Pool,  74  111.  97. 

and  in  no  respect  in  default  under  the  ^  Smith  v.  Price,  42  111.  399.     This 

contract,  conveyed  to  a  third  person  was  a  case  where  land  had  been  sold 

the  privilege  or  right  to  build  a  dam  under  a  contract  and  the  purchaser 

across  a  creek  in  one  corner  of  the  let  into  possession,  and  the  vendor 

land  to  draw  off  the  water  in  a  mill-  went  upon  the  premises  and  removed 

race  to  his  mill.  Held,  on  a  bill  to  en-  young  trees  and  ornamental  shrubs, 

join  him  from  digging  said  race-way  In  an  action  of  trespass  by  the  pur- 

and  dam,  that  the  contract  which  he  chaser  the  court  said:  "The  defend- 

had  obtained  from  the  vendee  was  a  ant  had  no  right  of  entry,  and  his 

sufficient  justification  as  against  the  entry  was  a  trespass;  and  he  is  liable 

acts  charged  in  the  bill,  but  that  its  for  all  injuries  done  to  the  premises, 

future  validity  would  depend  upon  which  was  in  fact  the  property  of  the 

whether  there  should  be  a  faithful  plaintiff,  subject  to  the  lien  of  the 

compliance  with  the  terms  and  con-  defendant  for  the  unpaid  purchase 

ditions  of  the  contract  of  sale  on  the  money."     See,  also,  Stow  v.  Russell, 

part  of  the  purchaser.     Baldwin  v.  3G  111.  23. 

Pool,  74  111.  97.  And  see,  in  support  of  ••Cromwell  v.    Craft,  47  Miss.  44; 

the  general  propositions  of  the  text,  Wade  v.  Thompson,  52  Miss.  367. 
Baker  v.    Bishop  Hill  Colony,  45  111. 


RELATION    OF   THE    PAltTIES.  199 

of  tho  vendor's  title.'  Indeed,  under  these  decisions,  botii 
vendor  and  vendee  are  estopped  from  buying  in  a  title  advers'j 
to  the  other  unless  it  be  for  tho  purpose  of  mutual  protection.- 
Probably  these  decisions  most  truly  exi)ress  the  spirit  of  the 
law;  for  it  is  fundamental  that  no  one  who  goes  into  possession 
of  land  under  another,  or  acknowledging  the  title  of  another, 
will  be  heard  to  dispute  tho  title  of  that  other  during  the  con- 
tinuance of  the  relation.  This  doctrine  lias  been  extended  and 
held  to  apply  fully  to  the  case  of  one  who  goes  into  possession 
of  land  uniler  a  contract  of  sale.'  "Whatever  may  be  his  pre- 
cise relation  to  the  property  and  to  the  owner  —  for  upon  this 
point  the  authorities  are  not  altogether  agreed  —  whether  a 
tenant  or  a  licensee,  it  is  generally  conceded  that  his  holding  is 
not  adverse,  and  cannot  become  so  until  by  some  unequivocal 
act  he  has  repudiated  the  relation.* 

On  the  other  hand  we  find  apparently  well-considered  cases 
which  announce  that  the  vendee  is  under  no  obligation  to 
maintain  his  vendor's  title,  and  that  there  is  no  policy  of  law 
that  forbids  the  vendee  in  possession  to  buy  in  an  outstanding 
title  to  the  premises  and  assert  it  against  his  vendor;  otherwise 
it  is  said,  it  might  be  asserted  by  the  owner,  or  a  stranger 
might  buy  it,  and  it  would  be  lost  to  both.^  In  most  of  the 
cases  which  sustain  this  doctrine  th'ere  are  peculiar  circum- 

1  Kirkpatrick  v.  Miller,  50  Miss.  521 ;  the  purchase  money  was  not  to  be 
Wilkinson  v.  Green,  34  Mich.  221.  paid  unless  the  vendor  should,  within 

2  Aston  V.  Robinson,  49  Miss.  353;  three  years,  make  him  a  warranty 
Austin  V.  McKinnoy,  5  Lea  (Tenn.),  deed  conveying  a  perfect  title;  and 
488;  Wilkinson  v.  Green,  34  Mich,  incase  of  failure  to  make  him  such 
221.  conveyance,  the  purchaser  was  to  re- 

3  Greene  v.  Munson,  9  Vt.  37 ;  Rip-  main  in  possession  of  the  premises 
ley  v.  Yale,  18  Vt.  220 ;  Ormond  v.  for  the  period  of  three  years,  and  pay 
Martin,  37  Ala.  598 ;  Stamper  v.  Grif-  a  reasonable  rent  for  the  same  for  thi- 
fin,  20  Ga.  312;  Harris  v.  Kinj?,  16  time  he  could  hold  peaceable  jjosses 
Ark.  122;  Burnett  v,  Caldwell,  9  siou,  and  before  the  expiration  of  the 
Wall.  (U.  S.)290;  Austin  v.  McKiu-  three  years  he  acquired  the  title  from 
ney,  5  Lea  (Tenn.),  488;  Wilkinson  v.  other  parties.  Ihld,  that  there  was 
Green,  34  Mich.  221.  nothing  in  the  relation  of  the  parties, 

<  HaiTal  v.  Leverty,  50  Conn.  46;  under  the  original  contract  or  other- 
Burnett  V.  Caldwell,  9  Wall.  (U.  S.)  wise,  that  prevented  the  purchaser 
290;  Harris  V.  King,  16  Ark.  122.  from  yielding  to  the  superior  title 

5  Green  v.  Dietrich,  114  111.  630.     In  and  purchasing  the  same,  and  in  that 

this  case  the  purchaser  entered  into  way  secure  his  peace, 
possession  under  an  agreement  that 


200  CONTKACT   OF    SALE. 

stances  which  have  shaped  the  policy  of  the  court,  but  the 
doctrine  itself  is  usuall}'^  announced  in  unqualified  terms.  In 
one  of  the  earliest  and  probably  most  authoritative  of  these 
cases'  the  propriety  of  applying  the  doctrines  which  exist  be- 
tween lessor  and  lessee  to  vendor  and  vendee  is  doubted  and 
denied.  The  title  of  the  lessee,  it  is  argued,  is  in  fact  the  title 
of  the  lessor.  He  comes  in  by  virtue  of  it,  holds  by  virtue  of 
it,  and  rests  upon  it  to  maintain  and  justify  his  possession. 
Having,  therefore,  no  independent  right  in  himself,  and  it 
being  a  part  of  the  very  essence  of  the  contract  under  which 
he  claims  that  the  paramount  ownership  of  the  lessor  shall  be 
acknowledged  during  the  continuance  of  the  lease,  and  that 
possession  shall  be  surrendered  at  its  expiration,  he  is  not  per- 
mitted to  controvert  the  title  of  his  lessor  without  disparaging 
his  own,  and  cannot  set  up  title  in  another  without  violating 
that  contract  by  which  he  obtained  and  holds  possession. 
These  principles,  it  is  contended,  do  not  apply  to  the  relation 
of  vendor  and  vendee.  The  vendee  acquires  the  property  for 
himself,  and  his  faith  is  not  pledged,  like  that  of  a  lessee,  to 
maintain  the  title  of  his  vendor,  and  that  the  property  becom- 
mg  by  the  sale  the  property  of  the  vendee,  he  has  a  right  to 
fortify  that  title  by  the  purchase  of  any  other  which  may  pro- 
tect him  in  the  quiet  enjoyment  of  the  premises.-  Probably 
no  very  serious  objection  can  be  made  to  these  principles  in 
the  case  of  an  executed  contract.  If  the  vendor  has  made  a 
conveyance  his  title  is  extinguished  in  law  as  well  as  in  equity, 
and  the  only  controversy  w^hich  should  arise  between  him  and 
his  vendee  relates  to  the  payment  of  the  purchase  money.  But 
it  is  difficult  to  perceive  wherein  the  possession  of  a  licensee 
differs  from  that  of  a  lessee  ?o  far  as  respects  his  duty  to  his 
licensor. 

A  party  in  possession  of  land  under  a  contract  of  purchase 
is  estopped  from  denying  the  title  of  his  vendor  upon  the  prin- 
ciple that  he  shall  not  use  the  possession  acquired  from  an 
apparent  owner  to  the  injury  of  such  owner.  But  the  rule,  it 
is  to  be  observed,  does  not  apply  when  the  right  of  possession 

1  Blight's  Lessee  v.  Rochester,  7  vendee  in  possession  and  one  not  in 
Wheat.  (U.  S.)  535.    This  case  seems   possession. 

to   make    a    distinction    between   a       -See,  also,  Jackson  v.  Johnson,  5 

Cow.  (N.  Y.)  74. 


RELATION    OF   THE    PARTIES.  201 

is  not  involved.  Thus,  while  a  tenant  cannot  deny  the  land- 
lord's title  in  an  action  to  recover  possession,  or  for  rent,  when 
the  lessee  has  actuall}^  enjoyed  the  premises,  yet  he  may  do  so 
when  he  has  not  been  in  the  actual  occujiation ; '  and  so,  in  an 
action  to  recover  the  amount  agreed  to  be  paid  on  a  contract 
of  j)urchase,  the  vendee  may  defend  on  the  ground  that  the 
seller  has  no  title  and  can  give  none.- 

>;  14.  Vendee's  possession  not  adverse.  Leaving  out  of 
view  the  main  question  discussed  in  the  last  paragraph,  it 
would  seem  certain  that  a  vendee  under  a  bond  or  contract 
for  conveyance,  though  placed  in  possession  b}^  the  vendor, 
does  not  hold  adversely  to  the  latter.  Whether  the  contract 
stipulates  for  possession  by  the  vendee,  or  the  vendor  of  his 
own  motion  puts  him  in  possession,  his  real  holding  is  that  of 
licensee.  The  relation  of  landlord  and  tenant  does  not  exist 
between  them;  for  the  characteristic  feature  of  that  relation 
is  wanting,  the  vendee  paying  nothing  for  his  enjoyment  of 
the  propert}'.  Such  a  case  comes  within  the  category  of  a 
license,  and  in  such  cases  the  vendee  cannot  dispute  the  title 
of  the  vendor  any  more  than  the  lessee  can  question  the  title 
of  his  lessor.^  By  the  very  fact  of  taking  under  a  bond  or 
contract  for  a  deed  to  be  thereafter  executed  by  the  vendor,  a 
purchaser  recognizes  the  title  of  his  vendor,  and  acknowledges 
himself  as  holdino-  in  subordination  and  not  in  anta^'onism  to 
it.  No  length  of  time  short  of  the  period  prescribed  for  the 
limitation  of  an  entry  into  lands,  or  at  least  for  the  foreclosure 
of  a  mortgage,  should  be  permitted  to  work  an  adverse  hold- 
ing; for  if  it  appears  that  the  purchaser  entered  into  posses- 
sion under  an  agreement  for  conveyance  and  in  amity  with 
the  holder  of  the  fee,  the  law  will  ])resume  a  continuance  of 
that  relation  until  the  contrary  appears.^  It  is  true  this  rela- 
tion may  be  subsequently  changed,  and  the  purchaser  may  as- 
sume an  adverse  position;  but  when  this  is  claimed  it  must  be 
abundantly  proved  —  possession  alone  is  insufficient. 

1  Vernam  v.  Smith,  15  N.  Y.  328.       (N.  Y.)42'2;  Hart  v.  Bostwick,  14  Fla. 

2  Burvvell  v.  Jackson.  9  N.  Y.  535 :    162. 

Stanley  v.  Stanley,  18  N.  Y.  508.  ^  Butler  v.  Douglass,  3  Fed.  Rep. 

^  Burnett    v.    CaUhvell,    9    "Wall.  G12;   and  see 'Wliiteside  v.  Jackson, 

(U.  S.)  200;  Harris  v.  Kinj;,  IG  Ark.  1  Wend.  (N.  Y.)-122;  Lewis  v.  Hawk- 

122;  Whiteside  v.  Jackson,  1  Wend.  ins.  23  Wall.  (U.  8.)  119. 


202  CONTEAOT    OF    SALE. 

Tlie  full  payment  of  the  purchase  price,  however,  removes 
the  reason  for  the  i-ulc;  and  hence,  where  the  consideration  is 
paid  and  the  owner  consents  that  the  purchaser  may  enter  and 
hold  the  land  as  his  own,  such  entry  and  possession  cannot  be 
deemed  subordinate  to  the  title  of  the  vendor,  but  is  adverse, 
and  a  practical  disseizin.^ 

The  doctrine  has  been  announced  in  strong  terms  by  the  fed- 
eral courts  that  while  the  vendor  without  deed  is  a  trustee  of 
the  vendee  for  the  conveyance  of  the  title,  and  the  vendee  in 
turn  a  trustee  for  the  payment  of  the  purchase  money,  yet 
that  the  vendee  is  in  no  case  a  trustee  of  the  vendor  as  to  the 
possession  of  the  property  sold ;  that  the  vendee  claims  and 
holds  it  in  his  own  right,  for  his  own  benefit,  subject  to  no 
right  of  the  vendor  save  the  terms  which  the  contract  imposes; 
and  that  his  possession  is,  therefore,  adverse  as  to  the  property, 
but  friendly  as  to  the  performance  of  the  conditions  of  pur- 
chase.'- This  result,  it  is  claimed,  follows  as  a  legal  sequence 
from  the  fact  that  the  vendee  is  the  equitable  owner;  and  hav. 
ing  taken  possession  under  the  contract,  the  vendor  is  in  the 
situation  only  of  an  equitable  mortgagor.  Also  that,  where  an 
entry  is  by  purchase  and  the  purchaser  claims  the  land  in  fee, 
he  is  not  a  trustee;  his  title,  though  derivative  from  and  con- 
sistent with  the  original  title  of  the  vendor,  is  nevertheless  a 
present  claim  in  exclusion  of  and  adverse  to  it.  There  is 
nothing  objectionable  about  this  doctrine  unless  it  is  perverted; 
for,  whether  the  possession  of  the  vendee  be  regarded  as  sub- 
servient or  adverse,  the  rule  is  the  same  that  equity  will  not 
permit  a  vendor  to  assert  a  legal  right  of  possession  unless  the 
vendee  has  violated  the  contract,  and  will  be  enjoined  from  so 
asserting  title  if  the  vendee  performs  it. 

§  15.  Yendee  may  attorn  to  stranger.  It  has  been  held 
that  while,  as  a  general  rule,  it  is  true  that  one  who  goes  into 
possession  of  land  under  a  contract  of  purchase  cannot  at  law 
dispute  the  title  of  his  vendor,  so  long  at  least  as  his  possession 
is  not  disturbed,  yet  if  the  vendor  himself  parts  with  the  title, 
or  if  the  land  is  sold  under  execution  against  hira,  the  vendee 
may  in  good  faith  attorn  to  the  purchaser;  and  in  an  action 

1  Hart  V.  Bostwick,  14  Fla.  162.  Briglit's  Lessee  v.  Rochester,  4  Pet. 

2  Boon  V.  Chiles,  10  Pet.  (.U.  S.)  177;   (U.  S.)  506. 


RELATION    OF   THE   PARTIES.  203 

of  ejectment  by  the  vendor  against  the  vendee,  the  vendee  may, 
even  though  tlic  purchase  money  is  still  unpaid,  show  such  sale 
and  attornment  as  a  defense  to  the  action.' 

§10.  Judgments  against  vendor.  A  judgment  regularly 
docketed  creates  a  lien  upon  the  legal  title  of  all  lands  stand- 
ing in  the  name  of  the  judgment  debtor;  and  notwithstand- 
ing he  may  have  contracted  to  sell  the  land  prioi-  to  the  ren- 
dition of  the  judgment,  it  will,  in  contein])lation  of  law,  still 
be  a  charge  upon  such  land  and  bind  the  legal  title.  But 
equity  limits  and  restricts  this  lien  to  the  amount  of  the  unpaid 
purchase  money  as  against  a  party  holding  under  a  contract 
of  purchase;^  and  on  a  sale  under  the  judgment  the  sIierifiTs 
vendee  would  stand  in  precisely  the  same  position  as  the  orig- 
inal vendor,  entitled  only  to  the  unpaid  purchase  mone3\' 

Land  in  the  possession  of  a  vendee  under  a  valid  contract  of 
sale  cannot  be  taken  in  execution  and  sold  as  the  property  of 
the  vendor  under  judgment  liens  obtained  after  the  contract 
of  sale  was  made,^  and  sales  under  execution  issued  on  such 
judgments  will  be  enjoined  at  the  suit  of  the  purchaser.'  The 
possession  of  the  vendee  is  notice  of  his  rights,  and  all  persons 
are  bound,  at  their  peril,  to  recognize  and  respect  them.^ 

§17.  Judgments  against  vendee.  The  interest  of  a  vendee 
under  a  contract  of  purchase  is  only  an  equity,  and  the  rule  is 
that  a  judgment  at  law  is  not  a  lien  upon  a  mere  equitable  in- 
terest in  land.  Before  the  purchase  money  has  been  fully 
paid  such  interest  is  not  subject  to  the  lien  of  a  judgment,  nor 
does  the  vendee  possess  any  such  legal  estate  in  the  land  as 
can  in  any  way  be  reached  by  process  of  law.'  But  where  the 
vendee  has  actually  paid  all  the  purchase  money,  so  that  the 
vendor  holds  the  property  as  a  mere  naked  trustee  for  the  use 
of  the  vendee,  this  fact,  together  with  possession,  particularly 
if  extended  over  a  period  of  years,  will,  it  seems,  vest  such  a 


I  Beall  V.  Davenport,  48  Ga.  1G5.  »  Jackson  v.  Snell,  34  Ind.  241, 

-Moyer  v.  Hinman,   17  Barb.  (N.  « Meyer  v.  Himnan,  13  N.  Y.  180; 

Y.)  139;  Parks  v.  Jackson,  11  Wend,  but  see  Lefferson  v.  Dallas,  10  Ohio 

(N.  Y.)  442 ;  Filley  v.  Duncan,  1  Neb.  St.  68. 

834;  Stewart  v.  Coder,  11  Pa.  St.  90.  '^Trimm  v.    Marsh,  54  N.  Y.   613; 

8  Kinports  v.  Boynton,  120  Pa.  St.  Jackson   v.    Parker,   9  Cow.  (N.  Y.) 

806.  83 ;  Kellogg  v.  Wood.  4  Paige  (N.  Y.), 

<  Adicks  V.  Dowry,  12  Rep.  7G4.  619. 


204  CONTliACT    OF    SALE. 

title  in  him  as  may  be  sold  on  execution,  even  though  he  does 
not  possess  seizin  at  law.^ 

§  18.  Vendor's  possession  after  sale.  A  vendor  who  re- 
mains in  possession  after  the  contract  and  before  conveyance, 
Avhile  in  law  the  owner  and  as  such  entitled  to  all  the  rights 
that  follow  or  attach  to  legal  ownership,  is  nevertheless  in 
equity  but  a  trustee  for  the  purchaser.  He  may  not  treat  the 
estate  as  his  own.  and  if  he  wilfully  damages  or  injures  it  he 
will  bo  liable  to  the  purchaser.^  Indeed,  some  of  the  authori- 
ties sa}'  that  he  is  liable  if  he  does  not  take  reasonable  care;' 
but  this  doctrine,  which  is  of  English  origin,  does  not  seem  to 
have  received  any  general  recognition  in  this  countr}^  while 
late  authorities  have  pronounced  a  contrary  rule,''  The  vendpr 
would  have  no  right  to  remove  trees,  shrubs  or  other  natural 
increment  of  the  land;  and  should  he  do  so  the  vendee  might, 
it  seems,  have  recourse  against  him  as  for  trespass.  This 
■would  certainly  be  the  case  if  the  vendee  had  been  let  into 
possession;  and  in  principle  there  should  be  no  difference  in 
the  application  of  the  rule.'* 

§  19.  Tendor's  possession  after  canveyance.  A  grantor 
remaining  in  possession  of  the  property,  after  a  conveyance 
with  general  warranty,  would  seem  to  be  effectually  estopped 
by  the  covenants  of  his  deed  from  claiming  any  rights  or  in- 
terests in  the  land  inimical  to  his  grantee;  and  such  has  been 
held  to  be  the  rule."  A  grantor  who  conveys  by  quitclaim 
onl3%  by  remaining  in  possession  of  the  property  and  asserting 
a  hostile  claim,  has  been  permitted  to  acquire  a  hostile  title 
against  his  grantee  bv  virtue  of  the  statute  of  limitations;'^ 

1  Talbot  V.  Chamberlin,  3  Paige  (N.  agreed  purchase    money.     Aj'er   v. 

Y.),  220;  Purely   v.   Doyle,    1   Paige  Bartlett,  6  Pick.  (Mass.)  71,  76. 

(N.  Y.),  558.     Where   the  owner  of  sgniithv.  Price,  43  111.  399. 

land  has  entered  into  a  bond  to  eon-  ^gee  Lysaght  v.  Edwards,  2  Ch.  D. 

vey  it     on    being    paid    the    whole  (Eng.)  499. 

amount    of    the    agreed     purchase  ^gee  Hellreigel  v.  Manning,  97  N. 

money,  and  a  part  of  it  has  been  paid  Y.  56. 

by  the  obligee,  who  enters  into  pos-  5  gee  Smith   v.   Price,  42   111.399; 

session,  it  seems  that  his  creditors  Stow  v.  Russell.  36  111.  23. 

may  avail  themselves  of    chancery  *>  Van  Keuren  v.  R.  R.  Co.  38  N.  J, 

jurisdiction  to  obtain  a  convej-ance  L.   165;    McCormick  v.  Herndon,  67 

of  the  property  to  themselves,  or  a  Wis.  650. 

sale  of  it  for  their  benefit,  upon  offer-  ^Borland  v,  Magilton,  47  Cal.  485. 
ing  to  complete  the  payment  of  the 


EELATION    OF   THE    PARTIES.  205 

while  some  courts  have  even  held  that  a  gi-antor  with  warranty 
may,  subsequent  to  the  delivery  of  his  f^M-ant,  originate  an  ad- 
verso  possession,  and  is  not  estoi)ped  from  assertmf^  the  same 
by  his  covenant  of  warranty.' 

Hut  to  enable  the  grantor  with  warranty  to  hold  adversely 
to  his  grantee,  such  holding  must  be  established  by  clear  and 
undoubted  testimony  showing  a  change  in  the  relations  of  the 
parties  toward  the  land.  The  mere  fact  of  the  retention  of 
possession  is  in  itself  insuiiicient;  for  the  presumption  of  law 
m  such  case  is  that  he  remains  in  possession  by  permission, 
and  that  his  holding  is  in  amity  with  and  in  subservience  to 
the  title  he  has  given.-  Indeed,  a  grantor  will  ordinarily  be 
estopped  by  his  own  deed  from  claiming  that  his  possession  is 
adverse  to  his  own  grantee.' 

Where  after  delivery  of  deed  the  grantor  remains  in  posses- 
sion, or  on  demand  refuses  to  surrender  the  same  to  his  grantee, 
he  assumes  the  attitude  of  a  trespasser  and  may  be  dispossessed 
by  action,  lie  may  also  be  treated  as  a  tenant  at  will  and 
liable  to  his  grantee  for  rent;  and  though  he  afterwards  aban- 
dons the  premises  which  the  grantee  proceeds  to  occupy,  the 
grantee  may  recover  for  the  use  of  the  land  during  his  exclu- 
sion, and  |)arol  evidence  will  not  be  admitted  to  show  a  reser- 
vation of  possessory  rights  in  the  grantor.^ 

§  20.  Destruction  of  property  —  Proceeds  of  insurance. 
Among  the  common  questions  growing  out  of  the  relation  of 
vendor  and  vendee  is  that  which  arises  where,  subsequent  to 
the  execution  and  prior  to  the  consummation  of  the  contract 
of  sale,  the  imjirovements  upon  the  land  are  destroyed  by  fire 
or  other  casualty.  By  the  well-known  rules  of  equity  the  prop- 
erty is  regarded  as  belonging  to  the  vendee,  the  vendor  retain- 
ing the  legal  title  simply  as  his  trustee  and  as  a  security  for 
the  unpaid  purchase  money.  Ordinarily,  if  the  pro])erty  has 
been  insured  by  the  vendor,  the  loss,  under  the  strict  rules  of 
law,  would  be  ])ayable  to  him,  as  he  is  still  regarded  as  the 
owner  of  the  property.     Yet  as  between  himself  and  the  vendee 

'  Sherman  v.  Kane,  8G  N.  Y.  57.  ^  McCorniick  v.  Herndon,  67  Wis. 

2  Jones  V.  Miller,  3  Fed.  Rep.  384;  650. 

Horbach  V.  Miller,  4Nob.  31;  Schwall-  ^  Jones    v.    Tiniiuous,  '21   Ohio  St. 

back   V.  li.  R.  Co.  69  Wis.  292;   and  590. 
see  Abbott  v,  Gregory,  39  Mich.  OS. 


20G  CONTRACT    OF    SALE. 

the  property  is  not  his,  but  that  of  the  vendee;  and  the  question 
■which  under  these  facts  arises  is:  Can  he  appropriate  to  him- 
self the  money  which  the  insurance  company  has  become  liable 
to  pav  on  account  of  the  loss?  If  it  is  conceded,  as  it  must 
be,  that  the  vendor  held  the  property  only  in  trust,  then  it 
would  naturally  follow  that  the  right  which  accrued  in  conse- 
quence of  its  destruction  took  its  place,  was  held  in  the  same 
way,  and  was  liable  to  be  enforced  in  a  court  of  equity.  This 
would  seem  to  be  the  plain  result  of  the  principles  governing 
the  relations  between  the  parties  established  by  an  ordinary 
contract  of  sale.^ 

So  far  as  insurable  interests  are  concerned,  both  parties  pos- 
sess them.2  Either  party  may  therefore  effect  insurance,  but 
to  whom  the  money  shall  be  paid  in  case  of  loss  seems  to  be  a 
question  that  has  been  the  subject  of  much  dispute  and  consid- 
erable contrariety  of  opinion.  A  learned  writer  says:  "  Where 
the  vendor,  in  a  contract  for  the  sale  of  a  house  which  is  de- 
stroyed by  fire  before  the  completion  of  the  purchase,  receives 
payment  for  the  loss  under  a  policy  which  existed  at  the  date 
of  the  contract,  no  reference  being  made  in  the  contract  to  the 
insurance,  the  vendee  has  no  claim  upon  the  funds."  ^  And 
this  doctrine  seems  to  have  received  the  general  assent  of  the 
English  courts.  There  is  manifest  injustice  in  this,  for  it  prac- 
tically gives  the  vendor  his  purchase  money  twice  over —  in  the 
first  instance  from  the  purchaser,  and  again  from  the  insur- 
ance company;  and  equit}',  while  it  enforces  payment  b}^  the 
purchaser,  who  may  get  practically  nothing,  will  not  relieve 
him  from  the  legal  consequences  of  the  contract  and  of  subse- 
quent events. 

A  more  reasonable  and  just  rule  seems  to  have  been  adopted 
by  the  courts  of  the  United  States,  however;  and  in  many  of 
the  states  it  is  the  settled  doctrine  that  money  accruing  on  a 
policy  of  insurance,  where  the  loss  has  occurred  subsequent  to 
the  execution  of  the  contract,  will  in  equity  inure  to  the  benefit 
of  the  vendee^  —  the  vendor  still  retaining  his  character  of 

1  Reed  v.   Liikens,  44  Pa.  St.  200;       3  May  on  Ins.  (2d  ed.)  §  450. 

Ins.  Co.  V.  Updegraff,  21  Pa.  St.  513.       "Reed   v.  Lukens,  44  Pa.  St.  200; 

2  Hough  V.  Ins.  Co.  29  Conn.  10;  Hill  v.  Cumberland,  etc.  Co.  59  Pa. 
Perry  Co.  Ins.  Co.  v.  Stewart,  19  Pa.    St.  474. 

St.  45. 


RELATION    OF   THK    PARTIES.  207 

trustee,  while  the  insurance  money  in  Lis  liands  represents  the 
property  that  has  been  (lestro3'ed.' 

If  the  vendee  has  procured  the  insurance  for  his  own  benefit, 
and  without  any  agreement  to  insure  for  the  benefit  of  the 
vendor,  it  seems  the  hitter  can  claim  no  benefit  from  the  in- 
surance.^ In  support  of  this  it  is  contended  that  a  contract  of 
insurance  against  fire,  as  general  rule,  is  a  mere  personal  con- 
tract between  the  assured  and  the  underwriter  to  indemnify  the 
former  against  the  loss  he  may  sustain,  and  as  an  illustration  is 
cited  the  familiar  case  of  mortgagor  and  mortgagee.  In  case 
a  mortgagor  effects  an  insurance  upon  the  mortgaged  prem- 
ises the  mortgagee  can  claim  no  benefit  from  it  unless  he  can 
base  his  claim  upon  some  agreement;  and  so,  in  the  case  of 
vendor  and  vendee,  it  is  incumbent  on  the  vendor  to  show  that 
the  insurance  was  effected  for  his  benefit  if  he  would  avail 
himself  of  the  proceeds.  Where  this  is  satisfactorily  shown 
the  right  of  the  vendor  is  unquestionable;  for  where  the  as- 
sured has  agreed  to  insure  for  the  protection  and  indemnity  of 
another  person  having  an  interest  in  the  subject  of  the  insur- 
ance, then  such  third  person  has  an  equitable  lien,  in  case  of 
loss,  upon  the  money  due  upon  the  polic}^  to  the  extent  of  such 
interest.^ 

§21.  Effect  upon  insurance  of  proviso  against  sales. 
There  is  now  usually  inserted  in  policies  of  insurance  a  special 
provision  which  recites  that  the  policy  shall  be  void  if  the 
property  insured  is  sold  and  conveyed  without  the  written  per- 
mission of  the  insurer.  Inasmuch  as  nearly  every  sale  of  im- 
proved realty  contemplates  a  transfer  of  the  insurance  thereon 
as  well,  this  provision  becomes  important  in  this  connection. 
The  object  of  the  proviso  seems  to  be  to  protect  the  insurer 
from  a  continuing  obligation  to  the  assured,  if  the  title  and 
beneficial  interest  should  pass  to  others  whom  he  might  not 
be  equally  willing  to  trust;  its  effect  is  to  annul  the  contract 
where  a  sale  of  the  proprietary  interest  is  made  to  a  tliird 
person.^ 

It  would  seem,  however,  that  while  a  transfer  of  the  prop- 

'  Ins.  Co.  V.  Updegraff,  21  Pa.  St.  Providence  Bank  v.  Benson,  24  Pick. 

'>13.  (Mass.)  204;  Ellis  v.  Krentsinger,  27 

2  Cromwell  v.  Ins.  Co.  44  N.  Y.  42.  Mo.  311. 

» Cromwell  v.  Ins.  Co.  44  N.  Y.  42;  ••noffman  v.  lus.  Co.  32  N.  Y.  405. 


208  CONTKACT   OF   SALE. 

erty  by  the  assured  to  a  third  person  will  have  the  effect  to 
vitiate  the  policy,  a  sale  by  one  joint  owner  to  another  of  his 
interest  in  the  propcrt}-  docs  not  come  within  the  operation  of 
the  rule,  and  is  not  a  cause  of  forfeiture  within  the  intent  and 
import  of  the  provision  against  sales.'  The  design  of  the  pro- 
vision is  not  to  interdict  all  sales,  but  only  sales  of  proprietary 
interests  by  parties  insured  to  parties  not  insured.  A  sale  be- 
tween joint  owners  makes  no  substantial  change  material  to 
the  risk,  and  none  within  the  intent  of  a  simple  proviso  against 
alienation.^ 

§  23.  Condemnation  proceedings.  AVhere  land  is  condemned 
after  sale,  such  proceedings  in  effect  operate  as  a  sale  of  the 
condemned  portion  by  the  vendee  —  a  forced  sale,  it  is  true,  but 
practical!}^  the  same  in  general  effect,  as  though  made  volunta- 
rily and  through  the  negotiation  of  the  vendee.  The  damages 
in  such  case  accrue  to  the  vendee  as  the  real  owner  of  the  prop- 
erty. The  legal  title  held  by  the  vendor  is  regarded  only  as  a 
security  for  the  payment  of  the  purchase  money ;  and  the  rela- 
tion of  the  parties,  so  far  as  respects  the  right  to  claim  and 
hold  such  damages,  is  not*  substantially  different  from  w^hat  it 
"would  have  been  if  the  vendor  had  given  a  deed  and  taken 
back  a  mortgage,  except  that  where  only  a  contract  is  given 
the  vendor  can  insert  terms  reserving  to  himself  a  more  effi- 
cient remedy  in  case  of  default  in  payment.  But  while  the 
damages  belong  in  equity  to  the  purchaser,  yet  when  paid  in 
money,  if  the  security  of  the  vendor  would  be  impaired  by  the 
purchaser's  receipt  of  the  same,  he  might  insist  that  they 
should  not  be  paid  until  his  security  be  increased  to  that  ex- 
tent; and  the  purchaser  would  have  a  corresponding  right  to 
security  if  about  to  be  placed  in  jeopardy  b}'  the  payment  of 
the  damages  to  the  vendor.' 

§  23.  Meclianics'  liens.  The  adjustment  of  the  rights  of 
the  parties  and  their  relations,  respectively,  to  liens  incurred 
after  sale  and  before  conveyance  have  been  productive  of  con- 
siderable diversity  of  opinion;  but  in  the  main  the  rule  may 
be  stated,  with  regard  to  mechanics'  liens,  as  follows:  Where 
the  owner  of  land  gives  a  contract  for  a  deed  to  the  purchaser, 

1  Tillou  V.  Kingston  Ins.  Co.  7  Barb.        2  Hoffman  v.  Ins.  Co.  32  N.  Y.  405. 
(N.  Y.)  570 ;  Buffalo  Engine  Works  v.       3  Stevenson  v.  Loehr,  57  Ul.  509. 
Ins.  Co.  17  N.  Y.  412. 


IMir.ATION    OF    Tllli    I'ARTIKS.  209 

who  procures  a  buikling  to  be  erected  on  the  premises,  the  lien 
of  the  median ic  attaches  only  upon  the  purchaser's  interest, 
and  the  vendor  cannot  be  required  to  part  with  his  title  until 
he  first  receives  full  payment  of  the  ])urchase  money.'  But 
the  vendor  must  do  notiiinf^  to  authorize  the  vendee  to  improve 
the  premises;  and  if  improvements  are  made,  they  must,  to 
come  within  the  foregoing  rule,  be  made  b}''  the  vendee  on 
his  responsibility.  In  such  event  the  mechanic's  lien  will  be 
confined  exclusively  to  the  purchaser's  interest. 

But  where  the  vendor  by  his  contract  of  sale  expressly  au- 
thorizes the  vendee  to  make  erections  and  improvements  on 
the  premises,  and  particularly  if  he  agrees  to  advance  money 
to  aid  in  such  improvements,  and,  before  any  termination  of 
the  contract  and  notice  thereof,  a  mechanic  performs  labor  or 
furnishes  materials  in  the  erection  of  buildings  on  the  land,  the 
latter  will  not  be  required  to  look  alone  to  the  title  held  by 
the  vendee,  but  ma}^  enforce  his  lien  against  the  legal  as  well 
as  the  equitable  title.' 

iHickox  V.  Greenwood,  94111.  266;       2  Henderson  v.    Connelly.    123  111. 
Johnson  v.  Pike,  35  Me.  291 ;  Hayes   98 ;  Hilton  v.  Merrill,  106  Mass.  528. 
V.  Fessenden,  106  Mass.  228;  Walker 
V.  Burt,  57  Ga.  20. 
14 


210 


CONTKACT   OF    SALE. 


CHAPTER  VII. 


AGENTS  AND  BROKERS. 


§1. 

General  principles. 

§21. 

Wlien  agent  becomes  persor.  - 

2. 

Who  may  act  as  agent. 

ally  liable. 

3. 

Continued  —  Trustee  as  agent. 

22. 

When    principal    chargeable 

4. 

Appointment  and  authority. 

with  agent's  acts. 

5. 

Proof  of  authority. 

23. 

Fraud  of  agent. 

6. 

Authority  resting  in  parol. 

24. 

Notice  to    agent   binds  prin- 

7. 

Authority  in  writing. 

cipal. 

8. 

Telegram  as  authority. 

25. 

Agent  dealing  for    his    own 

9. 

General  and  special  agents. 

benefit. 

10. 

Implied  powers. 

26. 

The  right  to  commissions. 

11. 

Agent  must  pursue    his  au- 

27. 

Continued  —Where  more  than 

thority. 

one  broker  is  employed. 

12. 

Agent's  liability  for  breacli  of 

28. 

Continued  —  Sale    by    owner 

instructions. 

without  broker's    interfer- 

13. 

For  misconduct. 

ence. 

14. 

Not  liable  for  errors  of  judg- 

29. 

Continued  —  Failure  to  close 

ment. 

within  time  stipulated. 

15. 

Ratification. 

80. 

Continued  —  Sale    by    unli- 

10. 

Agent's  signature. 

censed  broker. 

17. 

Revocation  of  authority. 

31. 

Continued  —  Agent    as    pur- 

18. 

Agency  coupled  with  interest. 

chaser. 

19. 

Agent's  authority  terminates 

33. 

Double  agency. 

with  principal's  death. 

33. 

The  measure  of  compensation. 

20. 

Undisclosed  principal. 

34. 

Sub-agents. 

§  1.  General  principles.  It  is  no  exaggeration  to  say  that 
fully  one-half  of  all  the  voluntary  transfers  of  real  property 
that  are  daily  made  in  the  United  States  are  effected  through 
the  intervention  of  agents  and  brokers.  In  every  city  of  any 
size  they  form  a  distinct  class  of  the  business  community, 
while  every  country  hamlet  can  show  at  least  one  or  two  indi- 
viduals who,  in  addition  to  their  other  avocations,  pursue  this 
branch  of  trade  as  one  of  their  methods  of  livelihood.  It  is 
not  strange,  therefore,  that  they  have  long  since  been  recog- 
nized by  the  courts,  nor  that  a  vast  body  of  case  law  shoukl 
have  been  built  up  in  the  determination  of  the  various  ques- 
tions growing  out  of  their  peculiar  calling. 

The  relation  of  agency  is  created  where  one  jiart}'  is  au- 
thorized to  do  certain  acts  for  or  in  respect  to  the  rights  or 


AGENTS    AND    BROKERS.  211 

property  of  anothor  —  tlie  former  being  called  the  agent,  the 
latter  the  principal.  The  acts  to  be  ])erformed  may  be  executed 
in  the  name  of  the  principal  or  in  the  name  of  the  agent  for 
the  principal,  while  the  authority  may  be  conferred  antece- 
dently or  inferred  from  subsequent  ratification  of  the  agent's 
acts.  In  its  broadest  sense  the  term  agent  is  made  to  cover 
almost  every  species  of  fiduciary;  but  in  its  strict  application 
to  sales  of  real  estate  it  is  generally  held  to  mean  only  those 
who  assume  to  act  in  the  place  of  another  under  express  or 
implied  powers,  and  is  distinguished  from  broker,  or  other 
liduciaries  who  simply  act  as  middle-men  or  negotiators. 

AVhile  the  powers  and  authority  of  an  agent  enable  him  to 
act  for  and  in  the  place  of  his  principal,  the  authority  of  the 
broker  employed  to  sell  real  estate  is  usually  limited  to  the 
power  of  finding  a  purchaser  satisfactory  to  the  principal;  and 
such  will  be  implied  from  his  vocation,  although  if  the  lan- 
guage of  the  principal  used  in  making  the  employment  clearly 
shows  that  he  intended  to  give  him  a  power  more  extensive 
than  that  of  a  mere  broker,  and  to  clothe  him  with  authority 
to  exercise  the  powers  of  an  agent,  and  to  bind  the  principal 
by  a  written  memorandum  of  sale,  the  courts  will  enforce  a 
written  contract  made  by  him  in  pursuance  of  the  agency.' 

§  2.  Who  may  act  as  agent.  Every  person  possessing  suffi- 
cient capacity  to  act  for  himself  may  properly  represent  another 
as  an  agent;-'  and  even  where  civil  disabilities  may  intervene  to 
prevent  or  disqualify  a  person  from  contracting  in  his  own 
name  he  may  nevertheless  act  for  one  to  whom  such  condi- 
tions do  not  apply ;  and  as  a  rule,  any  one  except  a  lunatic,  im- 
becile or  child  of  tender  years  may  be  an  agent  for  another.'' 
Thus,  a  married  woman,^  even  though  incapacitated  to  contract 
for  herself,  or  a  minor,''  if  of  sufficient  understanding,  may,  if 
properly  authorized,  make  valid  and  binding  contracts  for  an- 
other; but  an  insane  person,  having  neither  the  understanding 
to  receive  instructions   nor  the  judgment  necessary  for  the 

iRutenbcrg  v.  :Main,  47  Cal.    213.        2  Lea  v.  Bringicr,  19  La.  Ann.  15)7. 
Strictly  speaking,  a  broker  is  a  mere       ^Lyon  v.  Kent,  45  Ala.  056, 
*'  negotiator,"      "  miildle-raan  "'      or       ••  Singleton  v.  Mann,  ;5  Mo.  464(ong. 

"go-between."     Henderson  v.  State,  pg.);  Butler  v.  Price,  110  Ma.'^s.  97. 
50  Ind.  234;  and  see  Braun  v.  Chi-       ''Talbot  v.  Bowen,  1  A.  K.  Marsh. 

cago,  110  111.  180.  (Ky)  4^0. 


212  COxXTKACT    OF    SALE. 

proper  exercise  of  discretion,  is  for  that  reason  incapable  of  as- 
suming the  rchition,  and  the  same  is  true  of  all  persons  simi- 
larly situated.  It  is  essential,  however,  that  the  agent  be  a 
third  person,  for  neither  of  the  contracting  parties  can  act  as 
the  agent  of  the  other. 

§  3.  Continued  —  Trustee  as  agent.  The  rule  is  funda- 
mental that  a  trustee  is,  by  the  general  principles  of  law,  pre- 
cluded from  purchasing  the  trust  property  for  his  own  benefit, 
or  of  exercising  any  acts  in  relation  thereto  incompatible  with 
his  duty  as  such  trustee.  He  cannot  take  upon  himself  any 
adverse  employment  or  have  any  antagonistic  interest  that 
Avould  be  liable  to  expose  his  trust  to  abuse  or  fraud.  Hence, 
it  has  been  held  that,  as  he  cannot  buy  on  his  own  account,  it 
follows  that  he  cannot  be  permitted  to  buy  as  the  agent  of  a 
third  person.^ 

§  4.  Appointment  and  authority.  To  effectuate  a  binding 
sale  or  purchase  of  real  property,  the  memorandum  which  the 
law  requires  as  an  evidence  of  the  transaction  must  be  signed  by 
the  party  to  be  held  or  by  his  agent  thereunto  lawfully  author- 
ized. In  some  states,  as  a  safe-guard  against  fraud  and  the  un- 
authorized acts  of  persons  claiming  to  represent  the  principals 
to  the  agreement,  the  authority  by  which  the  agent  assumes 
to  act  must  itself  be  evidenced  by  a  writing ;  but  in  many  — 
perhaps  a  majority  —  of  the  states  this  additional  precaution 
is  not  required. 

Ordinarily,  if  one  acts  for  and  in  behalf  of  another  it  is  im- 
material to  the  question  of  agency,  so  far  as  third  persons  are 
concerned,  whether  he  acts  by  the  direction  and  request  of 
his  principal  or  by  his  permission  merely,  for  he  is  equally  an 
agent  in  both  cases;  yet  in  the  construction  of  powers  exercised 
by  an  agent  in  the  purchase  or  sale  of  real  estate,  a  stricter 
interpretation  is  usually  had  than  prevails  in  other  affairs  of 
business  or  in  transactions  wholly  related  to  chattels.  Where 
a  writing  is  required  the  authority  to  sell  must  be  clear  and 
distinct,  and  of  such  a  character  that  a  fair  and  candid  person 
can  see  without  hesitation  that  the  authority  is  given.  The 
expression,  "  I  will  sell,"  or  its  equivalent,  accompanied  by  a 
specification  of  terms,  does  not  confer  any  authority  on  an 

» Building  Ass'n  v.  Caldwell,  25  Md.  420. 


AGENTS     AND     BROKERS.  213 

agent  to  make  a  contract  of  sale;'  neither  does  a  correspond- 
ence between  the  owner  and  agent  concerning  the  property, 
price  and  terms  of  sale  confer  any  such  authority.^ 

The  same  general  principles  that  relate  to  the  appointment 
of  agents  by  a  writing  api)ly  with  equal  force  where  the  power 
to  sign  the  name  of  a  principal  to  a  contract  of  sale  may  be 
given  verbally;  and  in  every  instance  the  words  used  must  be 
unequivocal  in  their  meaning  and  import,  and  should,  with  the 
requisite  degree  of  certainty,  manifest  the  intention  of  the 
principal  to  do  something  more  than  merely  to  employ  a 
broker.'  For  this  reason  it  has  been  held  that  a  verbal  au- 
thority given  to  an  agent  "to  sell,"  or  "to  close  a  bargain," 
when  applied  to  real  estate,  amounts  to  nothing  more  than  a 
mere  authority  to  find  a  purchaser  at  the  price  mentioned,  and 
confers  no  power  on  the  agent  to  sign  the  principal's  name.* 

A  person  may  as  well  become  an  agent  by  adoption  as  by 
original  appointment;  and  where  a  person  has  assumed  au- 
thority to  act,  and  such  actions  have  with  full  knowledge  of 
the  facts  been  ratified  or  confirmed  by  the  principal,  such  per- 
son will  become  an  agent,  for  all  practical  purposes,  as  fully 
empowered  as  though  he  had  been  previously  appointed." 

An  agent  acting  under  parol  authority  only  cannot  bind  his 
principal  by  a  written  covenant  under  seal,  signed  with  the 
name  of  such  principal;*^  but  should  he  execute  a  contract 
under  seal,  such  seal,  if  not  essential  to  the  validity  of  the 
contract,  should  be  regarded  as  mere  surplusage,  and  the  con- 
tract be  held  good  as  a  simple  contract.'  So,  also,  although 
an  authority  under  seal  is  necessary  to  enable  an  agent  to  bind 
his  principal  by  a  contract  under  seal,  3'et  a  sealed  contract 

'  Bosseau  v.  O'Brien,  4  Biss.  (C.  Ct.)  agent  to  "  hold  on,"  in  reply  to  one 

395.  from  him  asking  if  he  would  take  a 

^Bosseau  V.  O'Brien,  4  Biss.  (C.  Ct.)  certain  price.    Albertson  v.  Ashton, 

395.    Where  the  authority  of  an  agent  102  111.  50. 

to  sell  land  is  required  by  the  statute  ^  Duffy  v.  Hobson,  40  Cal.  240. 

to  be  evidenced  by  a  writing,  tliat  re-  *  Duffy  v.  Hobson,  40  Cal.  240. 

quirement  is  not  fulfilled  by  letters  ''(j^ii^.j^  y   Grover,  33  N.  J.  L.  4Co; 

written  by  the  owner  of  the  i)roperty  Adams  v.  Power,  52  Miss.  828;  Sen- 

to  third  persons  showing  merely  that  tell  v.  Kennedy,  29  La.  Ann.  679. 

a  certain   real  estate  agent  was  em-  •'Ilarshaw   v.   McKesson,  65  N.  C. 

ployed  by  him  to  solicit  and  negotiate  688. 

for  prices;  nor  by  a  telegram  to  such  '  Long  v.  Ilartwell,  34  N.  J.  L.  116. 


214  CONTRACT    or    SALE. 

not  so  authorized  may  be  ratified  by  acts  in  jjais,  and  so  be- 
come obligatory  on  the  principal,  provided  it  is  not  one  of 
those  contracts  which  the  law  requires  should  be  under  seal.^ 

§  5.  Proof  of  authority.  Even  as  an  agent  in  order  to 
bind  his  principal  must  have  authority  to  act,  so  also  per- 
sons dealing  with  him  are  bound  at  their  peril  to  know  this. 
Whether  the  authority  be  verbal  or  written  they  must  inform 
themselves  of  its  nature  and  extent,  and  must  understand  its 
legal  effect.^  For  this  reason,  where  the  name  of  a  party  to  a 
contract  has  been  signed  by  a  person  representing  himself  to 
the  other  party  as  his  agent,  and  the  person  whose  name  has 
thus  been  signed  especially  denies  the  authority  in  a  suit  to 
enforce  it,  the  burden  of  showing  authority  in  the  agent  to 
sign  the  name  of  the  principal,  or  a  subsequent  ratification  by 
him,  falls  on  the  party  who  seeks  to  enforce  the  contract.' 

As  a  go?ieral  rule,  agency  may  be  proved  either  directly,  as 
by  express  words  of  appointment,  whether  uttered  orally  or 
contained  in  some  writing;*  or  indirectly,  as  b}' evidence  of 
the  relative  situation  of  the  parties,  and  their  habit  and  course 
of  dealing,  or  it  may  be  implied  from  circumstances  or  from 
subsequent  ratification.-^  It  cannot  be  proved  by  the  mere 
declarations  of  the  agent,  when  the  fact  of  agency  is  in  issue.^ 

In  every  case  where  a  purchaser,  relying  upon  an  agent's 
authorit3',  seeks  to  enforce  a  contract  made  under  it,  the  proof 
to  establish  the  power  of  the  agent  must  be  clear,  certain  and 
specific.'^ 

The  question  as  to  whether  an  agent  has  the  requisite  au- 
thority to  bind  his  principal  is  a  question  of  law  for  the  court; 

1  Adams  v.  Power,  53  Miss.  828.  ferring  an  authority  to  sell  the  same, 

2  Davidson  v.  Porter,  57  111.  300;  they  will  be  construed,  with  refer- 
Ins.  Co.  V.  Poe,  53  Md.  28;  Rawson  ence  to  the  surrounding  facts  and  cir- 
V.  Curtis,  19  111.  456;  Cooley  v.  Per-  cumstances,  in  determining  whether 
rine,  41  N.  J.  L.  322.  The  purchaser  they  were  in  fact  intended  to  author- 
may  always  refuse  to  buy  until  the  ize  the  party  addressed  to  make  a 
agent  produces  such  evidence  of  his  sale.  Bissell  v.  Terry,  69  111.  184. 
authority  as  to  leave  no  doubt  of  its  sjiabley  v.  Irwin,  16  111.  App.  362; 
extent.  Hull  v.  Jones,  69  Mo.  587. 

3  Emmons  v.  Dowe,  2  Wis.    322;  « Proctor    v.    Tows,    115    111.    138; 
Tribune    Co.    v.    Bradshaw,    20   111.  Whiteside  v.  Margarel,  51  111.  507. 
App.  17.  "A  bare  preponderance  of  the  evi- 

*  Where  letters  written  by  the  dence  will  not  be  sufficient.  Proud- 
owner  of  land  are  relied  on  as  con-    foot  v.  Wightman,  78  111.  553. 


AGENTS     AND     BROKERS.  215 

and  this  is  equally  true  whether  such  authority  is  sought  to  bo 
sustained  by  a  previous  authorization  or  by  a  subsequent  rati- 
iication.' 

§  G.  Authority  resting;  in  parol.  As  has  been  previously 
stated,  it  is  one  of  the  general  doctrines  of  agency  that  the  au- 
thority of  an  agent  to  act  for  his  alleged  principal  may  be 
inferred  from  circumstances,  and  does  not,  in  the  absence  of 
statutory  rules  to  the  contrary,  require  direct  evidence  to  es- 
tablish it;'-  and  that  agenc}',  as  a  question  of  fact,  may  be 
proved  by  the  acts,  declarations  or  conduct  of  the  parties, 
even  though  the  agent  was  appointed  by  power  of  attorney.' 
This  doctrine,  which  had  its  origin  in  transactions  concerning 
chattels,  and  which  still  continues  to  find  its  most  numerous 
illustrations  in  matters  growing  out  of  chattel  interests,  should 
be  sparingly  applied  when  sales  of  land  are  in  question;  for 
it  not  only  affords  an  avenue  for  the  introduction  of  fraud, 
but,  in  its  general  features,  is  opposed  to  the  policy  of  the  law 
governing  the  disposal  of  real  property.  It  applies  more 
directly  to  subsequent  than  to  antecedent  circumstances,  and 
in  some  cases  is  a  rule  of  necessity;  as  where,  with  knowledge 
of  the  facts,  the  principal  acquiesces  in  the  acts  of  the  agent 
under  such  circumstances  as  would  make  it  his  duty  to  repudi- 
ate them,  such  acquiescence  is  taken  as  a  confirmation  of  the 
acts  of  the  agent  equivalent  to  authority  antecedently  con- 
ferred;* and  even  such  knowledge  may  be  inferred  from  the 
facts  of  the  case.^ 

A  single  act  of  an  assumed  agent,  and  a  single  recognition 
of  his  authority,  may  under  certain  circumstances  be  enough 
to  prove  agency  to  do  similar  acts;  ^  but  agency  will  not  gen- 
erally be  presumed  from  a  previous  employment  in  a  similar 
matter. 

Authority  to  make  a  written  contract  is  not  conferred, 
where  the  thing  to  be  sold  is  land,  by  giving  an  agent  power 
to  sell.' 

iGulick  V.  Grover,  33  N.  J.  L.  403.    Goss  v.  Stevens,  32  Minn.  472;  Silver- 

2  Hull  V.  Jones.  69  Mo.  587.  man  v.  Bush,  16  111.  App.  437. 

3  Columbia,    etc.    Co.    v.   Geise,  38       » Curry  v.  Hale,  15  W.  Va.  867. 

N.  J.  L.  39.  6  Wilcox  V.  R.  R.  Co.  24  Minn.  269. 

*  Alexander  v,  Jones,  64  Iowa,  207 ;       '  Morris  v.  Ruddy,  20  N.  J.  Eq.  238 ; 

Sliepherd  v.  Hedden.  29  N.  J.  L.  343. 


216  CONTRACT   OF   SALE. 

§  7.  Authority  in  writing.  Where  by  law  the  authority  of 
an  agent  must  rest  in  writing,  parol  testimony  should  be  ex- 
cluded for  the  same  reasons  that  deny  its  admission  when  the 
contract  itself  is  in  dispute.  The  provision  relative  to  the  au- 
thorization of  tiie  agent  is,  in  such  case,  as  much  a  part  of  the 
statute  as  the  provisions  which  relate  to  the  memorandum ;  and, 
as  parol  testimony  is  refused  in  the  one  case,  so  also  should  it 
be  in  the  other.  And  even  where  the  written  authorization  of 
an  agent  is  not  a  statutory  requirement,  if  there  is  proof  that 
the  appointment  was  in  writing,  and  there  is  a  question  as  to 
the  extent  of  the  power,  the  paper  itself  must  be  produced  or 
accounted  for.  The  agency  cannot  be  proved  by  parol  testi- 
mony of  the  contents  of  the  paper,  or  by  circumstantial  evi- 
dence tending  to  show  that  such  agency  did  in  fact  exist.^ 

Where  the  written  authority  of  an  agent  to  sell  the  lands  of 
his  principal  is  required  by  the  statute  of  frauds,  it  must  re- 
ceive the  same  strict  interpretation  as  ordinary  written  pow- 
ers—  such  as  letters  of  attorney  or  letters  of  instruction  —  in 
which  the  authority  is  never  extended  beyond  that  Avhich  is 
given  in  terms,  or  is  absolutely  necessary  for  carrying  into 
effect  that  which  is  expressly  given. - 

§  8.  Telegram  as  authority.  During  verj'  recent  years  the 
introduction  and  general  use  of  the  telegraph  has  somewhat 
modified  the  rules  of  law  in  regard  to  writings,  and  by  general 
consent  telegrams  have  been  accorded  the  same  relative  place 
as  letters  and  other  writings  not  under  seal.  Hence,  an  au- 
thorization by  telegraph  may  properly  be  considered  as  an 
authorization  in  writing;  and  where  an  owner  of  land,  on  being 
notified  of  an  offer  to  purchase  and  learning  all  the  facts, 
sends  a  telegram  to  his  agent  to  accept  the  offer  and  make  the 
sale,  he  will  be  bound  by  a  contract  of  sale  made  by  his  agent 
as  directed.* 

§  9.  General  and  special  agents.  A  distinction  is  made 
between  general  and  special  agents.  The  former,  having  a 
wide  scope  both  of  duty  and  authority,  represents  his  princi- 
pal in  all  matters  within  the  ordinary  limits  of  the  principal's 
business,  and  this  may  be  in  one  or  more  places;  the  latter  is 

1  Neal  V.  Patten,  40  Ga.  363.  3  Chappell  v.    McKnight,   108    III. 

-'  Bissell  V.  Terry,  69  111.  184.  570. 


AGENTS     AND    BROKERS.  'J  17 

ono  wlioso  authority  is  definitely  limited,  and  whose  duty  is 
specified.'  If  a  g;eneral  agent,  acting  within  the  limits  of  his 
business,  violates  instructiijns  received  from  tlie  ])rineipal,  the 
principal  alone  will  be  liable  to  third  parties;  but,  if  a  special 
agent  violates  instructions,  the  principal  will  not  be  liable.- 

Tho  law  indulges  in  no  presumptions  respecting  the  char- 
acter of  an  agency,  however;  and  whether  an  agent  is  general 
or  special  is  a  (|uestion  of  fact  for  the  jury.* 

Agencies  in  respect  to  contracts  for  the  sale  or  conveyance 
of  land  are  usually  to  be  classed  as  special,  such  agencies  being 
generally  created  for  a  particular  and  defined  purpose;  and  in 
the  construction  of  the  powers  delegated  to  such  agents  courts 
are  ever  inclined  to  be  strict.  The  business  of  buying  and 
selling  real  estate  differs  in  many  respects  from  ordinary  mer- 
cantile transactions,  and  many  of  the  rules  that  possess  efficacy 
when  invoked  in  respect  to  such  transactions  are  inapplicable 
to  determine  questions  raised  by  the  relation  which  character- 
izes a  real  estate  agent  and  his  principal.  This  is  particularly 
true  in  respect  to  general  agency,  which  finds  but  few  illustra- 
tions where  the  subject-matter  of  the  agency  is  real  estate. 
The  agency  may,  however,  be  general,  as  in  any  other  line  of 
commerce  where  intermediaries  and  representatives  are  neces- 
sarily employed;  and  where  an  authority  is  given  to  an  agent 
to  buy  lands  in  a  certain  locality  and  its  vicinity,  and  to  buy 
generally  from  whomsoever  he  may  see  fit,  no  single  transac- 
tion being  in  view  but  a  number  of  separate  transactions,  this 
would  probably  constitute,  for  certain  purposes  at  least,  a 
general  agency.* 

If  the  agent  is  appointed  onl}^  for  a  particular  purpose 
and  is  invested  with  limited  powers,  or,  in  other  words,  is  a 
special  agent,  then  it  is  the  duty  of  persons  dealing  with  such 
agent  to  ascertain  the  extent  of  his  authorit}';  and  the  princi- 
pal will  not  be  bound  by  anv  act  of  the  agent  not  warranted 
by  or  fairly  and  necessarily  implied  from  the  terms  of  the  au- 
thority delegated  to  him.^     But  in  the  application  of  this  rule 

iCruzan  v.  Smith,  41  Iiul.  288.  *  Butler  v.  Maples,  9  AVall.  (U.  S.; 

2Cruzan   v.    Smith,    41    Ind.   288;  770. 

Baxter  v.  Lament,  GO  111.  237.  sCooley  v.  Perrine,  41  N.  J.  L.  322; 

3  Dickinson  Co.  v.  Miss.  Valley  Ins.  Baxter  v.  Lamont,  60  111.  237;  Pea- 
Co.  41  Iowa,  28G.  body  v.  Hoard,  46  III.  242. 


218  CONTRACT    OF    SALE. 

to  cases  affecting  the  rights  of  third  persons  who  have  dealt 
with  the  agent  in  good  faith,  care  must  be  taken  not  to  bind 
thera  by  limitations  placed  on  the  authority  of  the  agent  by 
the  private  instructions  of  the  principal,  which  are  not  known 
to  such  third  persons,  nor  properly  inferable  from  the  nature 
of  the  agent's  employment.^  Yet,  as  before  remarked,  it  is  the 
duty  of  persons  dealing  with  an  agent  to  ascertain  the  extent 
of  his  authority ;  and  usually  where  an  agent  exceeds  his  powers 
the  contract  will  not  be  binding  upon  the  principal,  and  where 
an  action  is  brought  upon  the  contract  the  real  question  in- 
volved has  respect  only  to  the  extent  of  the  agent's  authority, 
and  not  to  the  other  contracting  party's  knowledge  of  it.- 

§  10.  Implied  powers.  An  agent  to  sell,  in  the  absence  of 
particular  instructions,  has  the  power  to  do  what  is  usual  and 
necessary  in  effecting  such  sales  according  to  the  ordinary 
mode  of  doing  business.*  He  may  enter  into  a  contract,  within 
the  terms  of  his  authority,  w^hich  will  bind  his  principal*  —  this 
being  of  the  very  essence  of  an  authority  to  sell  —  and  gener- 
ally may  perform  all  such  acts  as  naturally  and  logically  fol- 
low the  employment.'^  Under  a  power  to  purchase  land  and 
to  subdivide  and  plat  the  same,  the  agent  may  bind  his  principal 
by  the  dedication  of  land  for  the  uses  of  a  street." 

§11.  Agent  must  pursue  his  authority.  While  all  the 
acts  of  an  agent,  performed  under  the  direction  of  his  principal 
and  within  the  scope  of  his  agenc}'^,  will  bind  the  principal  and 
be  regarded  as  the  principal's  own  acts,  yet  to  effect  this  the 
agent  must  act  within  the  authority  conferred."  If  he  be  em- 
powered to  sell  his  principal's  land  in  a  specified  manner,  at  a 
particular  time  and  place  and  on  certain  terms,  such  terms, 
time  and  place  must  be  strictly  observed.^     Yet,  though  the 

1  Lister  v.  Allen,  31  Md.  543.  an  agent  is  acting  within  the  scope 

^  Dickinson  Co.  v.  Miss.  Valley  Ins.  of  his  authority.    Brett  v.  Bassett,  63 

Co.  41  Iowa,  286.  Iowa,  340. 
3  Herring  v.   Skaggs,  62  Ala.   180;       !>  Thornton  v.  Boyden,  31  111.  200. 

Mfg.  Co.  V.  Givan,  65  Mo.  89.  An  agent  authorized  to  sell  for  $1,500, 

*  Haydock  v.  Stow,  40  N.  Y.  363,  if  at  once,  said  he  could  not,  and 

^  Barteau  v.  West,  23  Wis.  416.  asked    for    lower    terms.     After    a 

"Barteau  V.  West,  23  Wis.  410.  month,  with   no  further  authority, 

'Baxter  v.    Lament,    60    111.   237;  he  sold  for  $1,500.     Held,  that  the 

Yazel   V.    Palmer,   88  111.  597.     The  sale  was    unauthorized.     Matthews 

presumption  is  that  one  known  to  be  v.  Sowle,  12  Neb.  398. 


AGliNTS     AND     BR0KP:KS.  219 

agent  departs  liotn  liis  instructions,  if  the  unauthorized  act  is 
done  in  the  execution  of  a  power  conferred,  but  in  a  mode 
not  sanctioned  by  the  power  and  in  excess  or  misuse  of  it,  the 
principal  may  still  be  bound  by  ratification ;  and  this  may  be 
inferred  from  slight  acts  of  confirmation  on  his  part.  His  duty 
to  disallirm  at  once  is  imperative  in  such  cases.' 

An  agent's  powers  cannot  be  enlarged  by  implication  where 
his  authority  is  in  writing;  for  every  instrument  by  which  an 
agency  is  created  for  a  special,  particulai-  anti  dolined  purpose 
is  to  be  construed  strictly;  nor  will  the  iiUroduction  of  formal 
language  in  the  letter  of  appointment,  tending  to  show  ample 
powers,  vary  or  affect  the  application  of  this  rule.  Thus,  in  an 
appointment  by  letter  of  attorney  stating  the  powers  and  duties 
of  the  agent,  the  formal  clause,  "giving  and  granting  unto  our 
said  attorney  full  power  and  authority  to  do  and  perform  all 
and  every  act  and  thing  whatsoever  requisite  and  necessary  to 
be  done  in  and  about  the  premises,"  etc.,  while  conferring  ap- 
parently unlimited  power  if  read  by  itself,  must  nevertheless 
be  presumed  to  be  used  in  subordination  to  the  i)articular  sub- 
ject-matter of  the  power,  and  limited  accordingly. - 

A  substantial  compliance,  or  a  compliance  which  involves  no 
material  deviation  from  the  instructions  given,  will  usually  be 
considered  a  sulficient  pursuance  of  the  authority;  as,  where 
an  agent  is  authorized  to  sell  land,  one-half  payable  on  or  be- 
fore one  year,  a  contract  to  sell,  "one-half  payable  in  one  year," 
is  in  pursuance  of  the  authority,  the  legal  rights  of  the  vendor 
being  the  same  in  cither  case.'' 

§  12.  Agent's  liability  for  breach  of  instructions.  An 
agent  is  bound  to  execute  the  ortlers  of  his  princii)al,  whenever 
he  has  undertaken  to  |)ei'form  the  same,  unless  prevented  by 
some  unavoidable  accident  without  fault  on  his  part,  or  unless 
such  orders  require  the  performance  of  an  illegal  or  immoral 
act;  and  in  the  ))erformance  of  the  duty  he  has  undertaken  he 
is  bound  not  only  to  good  faith  but  to  reasonable  diligence, 
and  to  such  skill  as  is  ordinarily  possessed  by  pei'sons  of  com- 
mon capacity  engaged  in  the  same  business.*     lie  is  responsi- 

1  Meyers  v.  Life  Ins.  Co.  32  Hun  3  Deakin  v.  Underwood,  o7  Minn. 

(N.  Y.),  321 ;    Hart  v.  Dixon,  5  Lea  98. 

(Tenn.),  330.  ^Heincnian  v.  Heard,  50  N.  Y.  27. 

-•Jenkins  v.  Funk,  33  Fed.  Rep.  915. 


220  CONTRACT    OF    SALE. 

ble  for  all  loss  occasioned  by  any  violation  of  his  duty,  either 
in  exceeding  or  disregarding  his  instructions;^  and  it  is  no  ex- 
cuse that,  in  so  doing,  he  intended  to  act  for  the  benefit  of  his 
principal.-  A  violation  by  an  agent  of  the  positive  instruc- 
tions of  his  principal  is  gross  negligence,  and  renders  him  liable 
for  such  loss  or  damage  as  may  result  from  it;  and  in  such 
case  every  doubtful  circumstance  is  construed  against  him.' 

g  13.  For  miscomluct.  The  person  who  bargains  to  render 
services  for  another  is  deemed  in  law  to  undertake  in  good 
faith  and  integrity  the  performance  of  his  duties,  and  is  lia- 
ble in  damages  to  his  employer  for  negligence,  bad  faith  or 
dishonesty.  For  gross  misconduct  in  the  course  of  his  agency 
or  intentional  frauds  upon  his  principal,  he  may  be  held  to  have 
forfeited  all  right  to  compensation  as  respects  any  of  the  busi- 
ness of  the  principal  into  which  such  fraudor  misconduct  shall 
have  entered;*  and  it  seems  that  the  right  of  a  principal  to 
insist  that  his  agent  has  forfeited  his  right  to  compensation  by 
reason  of  intentional  gross  misconduct  and  fraud  cannot  be 
dependent  upon  the  principal's  ability  to  show  the  precise  ex- 
tent of  the  injury  to  him  on  account  of  such  misconduct  by 
facts  and  figures.'^ 

§  14.  Not  liable  for  errors  of  judgnient.  While  an  agent 
acting  under  express  instructions  is  liable  for  the  damages  re- 
sulting from  a  wilful  disregard  of  the  same,  yet  where  he  is 
clothed  with  a  general  discretion  in  the  management  of  the 
business  intrusted  to  him  he  will  not  be  held  responsible  for 
an  honest  mistake  in  its  exercise,  provided  he  acts  with  reason- 
able skill  and  ordinary  diligence.^ 

§  15.  Ratification.  The  ratification  of  an  act  of  another 
done  in  an  assumed  capacity  of  agent,  though  Avithout  an}'- 
precedent  authority,  creates  the  relation  of  principal  and  agent; 
and  the  principal  becomes  bound  by  the  act  to  the  same  ex- 
tent as  if  it  had  been  done  by  a  previous  authorization.'     In 

1  Rechtscherd  v.  Bank,  47  Mo.  181 ;  6  Schmidt  v.  Pfau,  114  111.  494. 

Williams   v.  Higgins,    30    Md.   404;  'Gulick  v.  Grover,  33  N.  J.  L.  463; 

Adams  v.  Robinson,  65  Ala.  586.  Vincent  v.  Rather,  31  Tex.  77;  Adams 

^Rechtscherd  v.  Bank,  47  Mo.  181.  v.  Power,  52  Miss.  828;  Roby  v.  Cos- 

3  Adams  v.  Robinson,  65  Ala.  586.  sitt,  78  111.  638 ;  Sentell  v.  Kennedy, 

*  Prescott  V.  White,  18  111.  App.  322.  29  La.  Ann.  679;  Goss  v.  Stevens,  32 

5  Prescott  V.  White,  18  111.  App.  322.  Minn.  472. 


AGENTS     AND     BItOKEKS.  221 

like  manner,  notwithstanding- an  agent  exceeds  Ills  authority, 
if  the  principal  nevertheless  accepts  the  benefits  of  the  agent's 
acts,  or,  with  full  knowledge  of  them  subsequently  attained, 
fails  to  repudiate  them, ho  will  be  held  responsible.^ 

But  bei'ore  a  person  can  be  bound  by  ratitication  of  an  act 
done  in  his  l)elialf,  it  must  appear  that  he  was  informed  of  all 
the  material  facts  in  the  transaction;-  and,  if  his  assent  has 
been  obtained  while  ignorant  of  those  facts,  ho  will  be  at  lib- 
erty to  disaffirm  when  informed  of  them.' 

The  principal,  when  informed  of  the  unauthorized  acts  of 
his  agent  with  respect  to  his  property,  must  within  a  reason- 
able time  elect  to  approve  or  disafHrm  them.  It  is  not  neces- 
sary, however,  that  there  should  be  an  express  ratification  to 
bind  the  principal;  but  a  subsequent  assent  may  be  inferred 
from  circumstances  which  the  lav/  considers  equivalent  to  an 
express  ratification.*  Thus,  the  act  of  an  agent  may  be  pre- 
sumed to  have  been  ratified  by  his  principal  when  the  acts  and 
conduct  of  the  latter  are  inconsistent  with  any  other  supposi- 
tion;^ and  silence  will,  ordinarilj^  be  considered  as  equivalent 
to  approval.®  Yet  while  the  failure  of  the  principal  to  repu- 
diate,w'ithin  a  reasonable  time,  the  acts  of  his  agent,  when  in- 

1  Williams  v.  Storm,  6  Coldw.  which  time  the  purchasers  had  im- 
(Tenn.)  203;  Maddux  v.  Bevan,  39  proved  the  land,  and  during  three 
Md.  485;  Watterson  v.  Rogers,  21  years  of  which  the  agent  had  resided 
Kan.  529;  Davis  v.  Krum,  12  Mo.  in  the  same  town  with  his  principal, 
App.  279;  Workman  v.  Cuthrio,  20  when  he  at  length  absconded  without 
Pa.  St.  495;  Brock  v.  Jones,  16  Tex.  having  paid  his  principal  any  of  the 
4G1 ;  Fisher  v.  Willard,  13  Mass.  379 ;  purchase  money,  held,  that  tliere  was 
Jones  v.  Atkinson,  08  Ala.  1G7;  a  ratification  of  the  sale.  Alexander 
Weisiger  v.  Wheeler,  14  Wis.  101.  v.  Jones,  64  Iowa,  207. 

2  Kerr  v.  Sharp.  83  111.  199;  Bos-  ^Beidman  v.  Goodell,  56  Iowa, 
seau  v.  O'Brien,  4  Biss.  395 ;  Rowan  592 ;  Hauss  v.  Niblack,  80  Ind.  407. 
V.  Hyatt,  45  N.  Y.  138;  Hovey  v.  As  when  he  receives  and  holds  the 
Brown,  59  N.  H.  114;  Dean  v.  Bas-  fruit  of  the  agent's  act.  Maddux  v. 
sett,  57  Cal.  610.  Bovan.  39  Md.  485.     Or  brings  a  suit 

'  Bannon   v.   Warfield,  42   Md.  22;  to  enforce  his  agent's  contract.    Ben- 
Lester  V.  Kinne,  37  Conn.  9;  Dean  v,  son  v.  Liggett,  78  Ind.  452;  and  see 
Bassett,  57  Cal.  640;  Roberts  v.  Rum-  Reid  v.  Hibbard,  6  Wis.  175. 
ley,  58  Iowa,  301.  ^  Meyer   v.    Morgan,   51   Miss.   21; 

*  Searing    v.     Butler,    69    111.    575.  Hawkins   v.    Lange,    22   Minn.    557; 

Where  an  agent  sold   land  without  Kehlor  v.  Komble,  20  La.  Ann.  713; 

authority,    but  the  principal    made  Breed  v.  Bank,  6  Colo.  235. 
no  objection  for  four  years,  during 


222  CONTRACT   OF    SALE. 

formed  of  them,  will  be  construed  into  an  acquiescence,  the  rule 
is  always  liberally  applied.  Mere  failure  on  his  part  to  dis- 
avow an  agent's  acts  instantly  on  being  apprised  thereof  is 
not  in  itself  a  ratification;'  but  he  must  act  promptly,  and  if 
with  full  knowledge  of  the  facts  he  ratifies  his  agent's  acts, 
even  for  a  moment,  he  is  bound  by  them.-  An  election  once 
made  is  irrevocable.'' 

The  maxim  that  ratification  is  equivalent  to  precedent  au- 
thorit}"  applies  as  well  to  corporations  as  to  natural  persons, 
and  is  equally  to  be  presumed  from  the  absence  of  dissent.'* 

But  while  a  principal  may  be  bound  by  the  subsequent  rati- 
fication of  an  unauthorized  act  on  the  part  of  an  agent,  it  has 
been  held  by  one  line  of  authority  that  the  other  party  may 
refuse  to  consummate  the  transaction  and  repudiate  the  con- 
tract. As  a  reason  for  this  doctrine  it  is  said  that  if  tiie  prin- 
cipal was  not  bound  by  the  agreement  of  the  agent  when  he 
made  it,  then  the  contract  is  void  for  want  of  mutuality,  and 
the  subsequent  acts  of  the  principal  affirmmg  the  authority  of 
the  asent  cannot  validate  the  contract  so  as  to  bind  the  other 
party  without  his  assent.  The  rule  of  law  undoubtedly  is  that 
both  parties  should  be  bound  by  the  contract  or  neither  should 
be  bound,  and  that  the  rule  is  a  just  one  none  can  deny ;  and  it 
clearly  stands  to  reason  that,  where  one  party  was  not  bound 
by  a  contract  when  it  was  entered  into  by  one  claiming  to  be 
his  agent,  but  vrho  in  fact  was  not  such  agent  and  had  no  au- 
thority to  bind  bis  principal,  such  party  should  not  be  allowed 
afterwards,  when  he  finds  the  contract  advantageous  to  him, 
to  affirm  the  contract  made  on  his  behalf  by  such  unauthorized 
person  and  compel  the  other  party  to  perform  it  on  his  part."' 

But  while  the  principles  just  stated  find  support  and  atfirm- 
ance  in  the  decisions  of  several  courts  of  the  highest  standing, 
the  weight  of  authority' seems  to  bear  in  an  opposite  direction. 
It  has  been  suggested  that  a  contract  entered  into  by  one  of 
the  parties  in  person  and  for  the  other  party  by  an  unauthor- 

1  Miller  v.  Stone  Co.  1  111.  App.  ^  Kelsey  v.  National  Bank,  69  Pa. 
273.  St.  42G. 

^Silverman  v.  Bush,  16  III.  App.  ^Atlee  v.  Bartholomew,  69  Wis. 
437.  43 ;  and  see  Townsend  v.  Corning,  23 

3  Andrews  v.  Ins.  Co.  92  N.  Y.  596.    Wend.   (N.   Y.)   435;    Wilkinson    v. 

Heavenworth,  58  Mich.  574. 


AGENTS     AND     BROKERS.  223 

izcd  agent  amounts,  practically,  to  a  raerp  proposal  or  ofTcr  on 
the  part  of  the  former  from  which  he  would  have  a  right  to 
recede  until  it  had  been  ratified  or  accepted  by  the  other  party 
so  as  to  become  binding  u|)on  him,  and  that  the  other  party 
may,  within  a  reasonable  time  after  receiving  notice  of  its 
existence,  elect  to  accept  by  a  ratificati(m  or  confirmance  of 
the  prior  unauthorized  act.'  The  rule  has  further  been  laid 
down  that  the  principal,  upon  being  informed  of  an  act  of  his 
agent  in  excess  of  his  authority,  has  the  right  to  elect  whether 
he  will  adopt  the  unauthorized  act  or  not;  and  so  long  as  the 
condition  of  the  parties  is  unchanged  he  cannot  be  prevented 
from  such  adoption  because  the  other  party  to  the  contract 
may  for  any  reason  prefer  to  treat  the  contract  as  invalid.- 

Where  a  principal  has  expressly  repudiated  the  unauthorized 
act  of  his  agent,  delay  in  bringing  a  necessary  suit  cannot  be 
deemed  a  ratification.'' 

§  16.  Agent's  signature.  It  would  seem  that,  if  an  instru- 
ment which  shows  on  its  face  the  names  of  the  contracting 
parties  is  executed  by  an  agent,  the  agent  may  sign  his  own 
name  first,  adding  "agent  for"  his  principal;  or  he  may  sign 
the  name  of  bis  principal  first,  and  add  "by"  himself  "as 
agent."*  This  is  undoubtedly  the  case  in  respect  to  all  un- 
sealed instruments;  and,  as  agreements  for  the  sale  of  lands 
do  not  ordinarily  require  a  seal,  would  probably  be  permitted 
to  prevail, even  where  the  agreement  purports  to  be  under 
seal.  A  different  rule  would  prevail  in  case  of  powers  of  at- 
torney where  the  signature  should  purport  to  be  that  of  the 
principal  and  not  the  agent. 

Where  the  contract  is  signed  by  the  agent  with  his  own  sig- 
nature, though  qualified  by  the  word  "agent,"  such  addition 
will  ordinarily  be  regarded  as  a  simple  description  of  the  per- 
son —  furnishing,  perhaps,  a  mode  of  identification,  yet  available 
for  no  other  purpose.  Such  is  the  ordinarily -accepted  rule 
when  the  body  of  the  contract  fails  to  show  any  additional 

1  See  note  to  Atlee  v.  Bartholomew,  67.  This  view  is  also  taken  by  Story. 
5  Am.  St.  Rep.  103.  S?e  Story's  Agency,  §  245  et  scq. 

2  Andrews  V.  Life  Ins.  Co.  92  N.  Y.  'McClure  v.  Evartson,  14  Lea 
59G;   and  see  Hammond  v.  Hannin,  (Tenn.),  495. 

21  Mich.  374 ;  State  v.  Shaw,  28  Iowa,       *  Smitli  v.  Morse,  9  Wall.  (U.  S.)  76.  ■ 


224  CONTRACT   OF    SALE. 

act  of  agency;  ^  but  if,  from  the  entire  instrument,  it  satisfac- 
torily appears  that  the  person  executing  acts  only  as  an  agent 
and  intends  to  bind  his  principal  and  not  himself,  a  liberal  con- 
struction will  be  given  to  it." 

§  17.  Kevocatioii  of  authority.  An  agency  to  sell  land 
mn.y  be  revoked  at  any  time  before  sale  unless  coupled  with 
an  interest  or  given  for  a  valuable  consideration;"  and  gener- 
ally where  the  principal  disposes  of  the  subject-matter  of  the 
agency,  this,  by  implication  of  law,  will  operate  as  a  revoca- 
tion of  the  power  of  his  agent  to  sell  the  same.*  But  where 
a  party  engages  the  services  of  another  to  assist  him  in  mak- 
ing any  disposition  of  his  property,if  he  desires  to  dispense 
with  such  services  he  should  give  the  other  party  notice;  if  he 
does  not  and  the  service  is  rendered,  he  will  be  required  to 
pay  for  the  same.^ 

After  revocation  of  an  agent's  authority  the  principal  is  not 
bound,  as  between  himself  and  the  agent,  to  notify  the  latter 
of  his  dissent  from  acts  done  by  such  agent  in  pursuance  of 
the  original  authority;^  but,  with  regard  to  third  persons,  the 
general  rule  is  that  one  who  has  dealt  with  an  agent  in  a  mat- 
ter within  the  agent's  authority  has  a  right  to  assume,  if  not 
otherwise  informed,  that  the  authority  continues;  and  unless 
notice  of  revocation  is  brought  home  to  him  the  principal  will 
ordinarily  be  bound  if  the  dealings  continue  after  the  authority 
is  revoked,^ 

A  principal's  insanity,  inasmuch  as  it  deprives  him  of  the 
capacity  to  act  for  himself,  will  also  have  the  effect  of  a  revo- 
cation of  the  authority  of  his  agent,  except  in  cases  where  a 
consideration  has  previously  been  advanced,  so  that  the  power 
has  become  coupled  with  an  interest;^  or  where  a  considera- 

iHall    V.    Cocla-ell,   28    Ala.   507;  son  v.  Carson,  11  Oreg.  361;  Haydock 

Crum  V.  Boyd,  9  Ind.  289;  Forster  v.  v.  Stow,  40  N.  Y.  363. 

Fuller,  6  Mass.  58;  Sayre  v.  Nichols,  <  Bissell  v.  Terry,  69  111.  184. 

5  Cal.  487;  Bingham  v.  Stewart,  13  5  Bash  v.  Hill,  62  111.  216. 

Minn.  106.  6  Kelly  v.  Phelps,  57  Wis.  425. 

2  See  Sturdivant  v.  Hull,  59  Me.  -McNeilly  v.  Ins.  Co.  66  N.  Y.  23; 
172;  Smith  v.  Morse,  9  Wall.  (U.  S.)  Claflin  v.  Lenheim,  66  N.  Y.  301. 

76.  8  Haggart  v.  Ranger,  15  Fed.  Rep. 

3  Brown    v.    Pforr,    38    Cal.    550;    860. 
Chambers  v.  Seay,  73  Ala.  372 ;  Simp- 


AGENTS     AM)     DR0KER8.  225 

tion  of  value  is  given  by  a  third  person  trusting  to  an  a))par- 
ent  authority  and  in  ignorance  of  tlie  principal's  incapacity.' 

Where  two  principals  jointly  appoint  an  agent  to  take  charge 
of  a  matter  in  which  they  are  jointly  interested,  a  severance 
of  their  interest  revokes  the  agency.- 

§  18.  Aj^ency  coupled  with  interest.  As  previously  statetl, 
the  principal  may  generally  terminate  the  agency  at  his  pleas- 
ure, pi'ovided  that  the  same  is  not  cou))led  with  an  interest  in 
favor  of  the  agent,  liut  if  the  agent  has  a  direct  interest  in  the 
subject-matter  of  the  agency  or  in  the  execution  of  the  powers 
thereby  conferred,  the  rule  is  different,  and  the  principal  will 
not  be  permitted  to  revoke  the  same  where  such  revocation 
is  to  the  injury  of  the  agent  or  prejudicial  to  his  interests;  and, 
notwithstanding  that  he  may  have  attempted  so  to  do,  the 
agent  may  still  continue  to  act  and  to  fully  accomplish  the 
original  purpose.'' 

The  agent's  interest,  however,  must  be  tangible — consist- 
ing either  of  some  vested  right  in  the  subject-matter  of  the 
agency,  the  land  itself,  or  in  the  proceeds  that  may  be  de- 
rived from  its  sale,  and  which  to  a  certain  extent  represent 
the  land.  Hence,  a  mere  right  to  a  percentage  of  the  proceeds 
derived  from  sale,  to  be  retained  by  wa\'of  compensation,  con- 
stitutes no  interest;'*  nor  will  expenditures  made  by  the  agent 
in  endeavoring  to  carry  out  the  object  of  the  agency  come 
within  the  meaning  of  the  rule;  but  if  land  be  intrusted  to 
another  to  sell  and  from  the  proceeds  thus  derived  to  first  re- 

'  Hill  V,  Day,  34  N.  J.  Eq.  150.  izcd  an  agent  in  writing  to  soil  tlie 

-  Rowe  V.  Rand,  111  Ind.  206.  land,  the  agent  agreeing  to  transport 

•^Varnum  v.  Meser%'e,  8  Allen  specimens  of  the  ore  to  England,  and 
(Mass.),  158;  Hutchins  v.  Hebbard,  to  receive  as  compensation  "anun- 
34  N.  Y.  24;  Ilynson  v.  Noland,  14  divided  one-fourth  interest  in  the  pro- 
Ark.  710;  Bonney  v.  Smith,  17  111.  ceeds  of  sale  when  sold  as  afore- 
531 ;  Wheeler  v.  Knoggs,  8  Ohio,  1G9;  said," —  held,  that  the  agent's  author- 
Dougherty  V.  Moon,  59  Tex.  397.  ity  was  not  coupled  with  an  interest, 
*  Thus,  a  power  to  sell  and  receive  and  was  revocable  at  any  time  before 
tlie  proceeds  qbove  a  certain  sum  by  sale.  Chambers  v.  Seay,  73  Ala.  072. 
way  of  commission  is  not  a  power  An  agreement  as  to  a  certain  portion 
coupled  with  an  interest  which  can-  of  the  net  profits  to  be  derived  from  a 
not  be  revoked.  Simpson  v.  Carson,  sale  of  land  gives  the  agent  no  inter- 
11  Oreg.  361.  And  where  the  owner  est  in  the  land.  LeMoyne  v.  Quimby, 
of  land  containing  iron  ore  author-  70  111.  390. 
15 


22G  CONTRACT   OF   SALE. 

imburso  himself  for  moneys  theretofore  advanced  to  his  prin- 
cipal, or  in  the  satisfaction  of  a  debt  of  any  kind  previously 
contracted,  the  interest  thus  acquired  attaches  to  the  land  in 
his  hands  and  cannot  be  divested, 

§  19.  Agent's  authority  terminates  with  principal's 
death.  As  an  agent  is  merely  a  representative,  it  naturall}'' 
and  logically  follows  that  his  powers  in  this  respect  are  imme- 
diately determined  upon  the  death  of  the  person  for  whom  he 
professes  to  act.  His  authority  is  not  revolved  in  the  proper 
acceptation  of  the  terra,  for  this  implies  that  it  has  to  be  re- 
called or  resumed  by  the  person  from  whom  it  emanates,  but 
absolutely  ceases,  for  there  cannot  be  an  agent  without  a  prin- 
cipal; '  and  the  fact  that  the  agent,  in  ignorance  of  his  princi- 
paPs  death,  has  in  good  faith  contracted  after  that  event  does 
not  alter  the  rule  or  confer  upon  the  other  contracting  party 
any  additional  rights." 

§  20.  Undisclosed  principal.  The  rule  is  well  established 
in  respect  to  chattel  sales  that  a  principal,  although  not  dis- 
closed by  the  agent,  is  nevertheless  responsible  on  the  agent's 
contracts  if  the  latter  had  power  to  make  them.  By  contract- 
ing in  his  own  name  he  only  adds  his  personal  liability  to  that 
of  his  .principal;  and  the  seller,  upon  discovering  the  princi- 
pal, may  elect  to  hold  either  principal  or  agent  responsible  for 
the  price.^  This  doctrine  has  been  held  to  obtain  as  well  in 
respect  to  contracts  which  are  required  to  be  in  writing  as  to 
those  where  a  writing  is  not  essential  to  their  validity;*  and  a 
principal  may  be  charged  upon  a  written  parol  executory  con- 

iTravers    v.    Crane,    15    Cal.    12;  3  I.ans.  (N.  Y.)489:  Meeker  v.  Clag- 

Davis  V.   Bank,  46  Vt.  728;  Cleve-  horn,   44  N.  Y.  849.     But  it  seems 

land  V.  Williams,  29  Tex.  204;  Salt-  that,  where    the    real   principal    is 

marsh  v.  Smith,  32  Ala.  404 ;  McDon-  known  to  the  seller  at  the  time,  but 

aid  V.  Black,  20  Ohio.  185 ;  Clayton  V.  the  contract  is  made  in  the   name 

Merritt,  52  Miss.  353.  and  upon  the  credit  of  the  agent,  the 

•  See    Gait     v.    Galloway,    4   Pet.  contract  will  be  deemed  to  be  with 

(U.  S.)  332;  Davis  v.   Bank,  46  Vt.  the  agent  individually,  exclusive  of 

728;  Travers  v.   Crane,    15  Cal.  12;  liability  on  the  part  of  the  actual 

Clayton  v.  Merritt,  52  Miss.  353;  Es-  principal.      Davis    v.    McKinney,    6 

tate  of  Rapp  v.  Ins.  Co.  113  III.  390.  Coldw.  (Tenn.)  18. 

3  Youghiogheny  Iron  Co.  v.  Smith.  *  Dykers  v.  Tovvnsend,  24  N.  Y.  61 ; 

6o  Pa.  St.  340;  Davis  v.  McKinney,  Huntington  v.  Knox,  7  Cush.  (Mass.) 

6  Coldw.  (Tenn.)  15;  Duvall  v.  Wood,  371 ;  Coleman  v.  Bank,  53  N.  Y.  393. 


AGENTS     AND     BROKERS.  227 

tract  entered  into  by  an  agent  in  liis  own  name  witliin  liis  au- 
thority, althouf^h  the  name  of  the  principal  does  not  appear  in 
the  instrument,  and  the  party  dealing  with  the  agent  supj)osed 
he  was  acting  for  himself.'  It  is  somewhat  didicult,  however, 
to  reconcile  this  doctrine  with  the  rule  that  parol  evidence  is 
inadmissible  to  change,  enlarge  or  vary  a  written  contract; 
and  the  argument  upon  which  it  is  supported  savors  strongly 
of  refined  subtlet}'.  Some  of  the  cases  proceed  upon  the  quali- 
fied theory  that  a  written  contract  of  an  agent  may  be  en- 
forced against  tiie  principal  when  it  can  be  collected  from  the 
whole  instrument  that  the  intention  was  to  bind  the  principal ;- 
but  it  would  seem,  from  the  preponderance  of  authority,  that 
ihis  qualification  is  no  longer  regarded  as  an  essential  part  of 
the  doctrine.^  It  has  further  been  contended  in  this  connection 
that  if  evidence  shov/ing  an  unnamed  principal  amounts  merely 
to  an  explanation  of  the  real  character  of  the  transaction,  and 
does  not  in  any  degree  contradict  or  qualify  the  provisions  and 
stipulations  of  the  contract  itself,  and  that  in  all  cases  where 
the  cliaracter  in  which  parties  contract  is  not  defined  on  the 
face  of  the  writing,  it  is  competent  to  show  that  one  or  both 
of  the  contracting  parties  were  agents  for  other  persons  and 
acted  as  such  in  making  the  contract,  so  as  to  give  the  benefit 
of  the  contract  to  the  unnamed  principal.* 

Nor  will  any  question  arise,  under  a  contract  made  in  this 

1  Briggs  V.  Partridge,  64  N.  Y.  357.  cipals   were   not  known  when    the 

-See  Negus  v.  Simpson,  99  Mass,  agreement  was  signed,  parol  evidence 

388.  was  admissible  to  show  tlie  agency 

3  See  Eastern  R.  R.  Co.  v.  Benedict,  of  the  signer  and  to  charge  the  prin- 

5  Gray  (Mass.),  566;  Briggs  v.   Part-  cipal;  but  that  if,  in  point  of  fact, 

ridge,  64  N.  Y.  357.  agency  was  then  disclosed,  such  evi- 

*  See  1  Addison,  Cont.  43.  Chand-  dence  tended  to  vary  the  writing,  and 
ler  V.  Cox,  54  N.  H.  561,  was  a  case  could  not  be  admitted.  The  ground 
in  which  the  principals  were  sued  of  the  ruling  upon  the  latter  point 
upon  a  contract  which  was  signed  by  was  that  if  tlie  plaintiff  knew,  when 
their  agent,  but  which  did  not  upon  the  contract  was  entered  into,  that  it 
its  face  disclose  an  agency.  It  was,  was  made  for  the  benefit  of  third 
however,  a  question  of  fact  wliether  parties,  the  writing  showed  that  they 
or  not  the  principals  were  known  to  had  elected  to  look  to  the  agent  for 
be  such  at  the  time  the  contract  was  its  performance,  and  parol  evidence 
executed.  The  court,  in  an  able  and  was  not  admissible  to  vary  the  writ- 
elaborate  opinion,  which  reviews  all  ing  by  showing  that  they  did  not  so 
the  authorities,  hold  that  if  the  priu-  elect. 


228  CONTRACT   OF    SALE. 

manner,  with  reference  to  the  statute  of  frauds;  for  the  statute 
provides  that  the  memorandum  shall  be  signed  by  the  party 
to  be  charged  or  his  agent  duly  authorized,  and  if  executed  by 
the  agent  pursuant  to  authority  it  would,  it  seems,  be  a  valid 
execution  and  the  principal  would  be  bound.' 

A  different  case  is  presented  when  the  contract  is  under  seal. 
Can  a  contract  under  seal,  made  b}'^  an  agent  in  bis  own  name 
for  the  purchase  of  land,  be  enforced  as  the  simple  contract  of 
the  real  principal  when  he  shall  be  discovered?  There  are 
cases  which  hold  that,  when  a  sealed  contract  has  been  exe- 
cuted in  such  form,  that  it  is,  in  law,  the  contract  of  the  agent 
and  not  of  the  principal;  but  if  the  principal's  interest  in  the 
contract  appears  upon  its  face  and  he  has  received  the  benefit 
of  performance  by  the  other  party  and  has  ratified  and  con- 
firmed it  by  acts  i)ij)(iis,  and  the  contract  is  one  which  would 
have  been  valid  without  a  seal,  the  principal  may  be  made  lia- 
ble in  assumpsit  upon  the  promise  contained  in  the  instrument, 
■which  may  be  resorted  to  to  ascertain  the  terms  of  the  agree- 
ment.^ 

The  rule  is  fundamental,  however,  that  those  persons  only 
can  be  sued  on  an  indenture  who  are  named  as  parties  to  it, 
and  that  no  action  can  lie  against  one  person  on  a  covenant 
which  purports  to  have  been  made  by  another.*  It  is  also 
true  that  a  seal  has  lost  most  of  its  former  significance;  yet 
the  distinction  between  specialties  and  simple  contracts  has 
not  been  obliterated ;  and  in  the  absence  of  authority  it  may 

1  Lawrence  V.  Taylor,  5  Hill  (N.Y.),  though  it  clearly  appeared  in  tiio 
113,  body  of  the  contract  that  the  stipu- 

2  Du  Bois  V.  Canal  Co.  4  Wend,  lations  were  intended  to  be  between 
(N.  Y.)  285;  Lawrence  v.  Taylor,  5  the  principals  and  purchasers,  and 
Hill  (N.  Y.),  107.  not  between  the  vendees    and    the 

3Spencerv.  Field,  10  Wend.  (N.Y.)  agent.      The  plaintiffs  in  this  case 

88;    Townsend  v.    Hubbard,  4  Hill  were  the  owners  of    the  land   em- 

(N.  Y),  351.    In  this  case  it  was  held  braced  in  the  contract,  and  brought 

that,  where  an  agent  duly  authorized  their  action  in  covenant  to  enforce 

to  enter  into  a  sealed  contract  for  the  the  covenant  of  the  vendees  to  pay 

sale  of  the  land  of  his  principals  had  the  purchase  money ;  and  the  court 

entered  into  a  contract  under  liis  own  decided  that  there  was  no  reciprocal 

name  and  seal,  intending  to  execute  covenant  on  the  part  of  the  vendors 

the  authority  conferred  upon  him,  to  sell,  and  that  for  want  of  mutual- 

the  principals  could  not  treat  cove-  ity  in  the  agreement  the  action  could 

nants  made  by  the  agent  as  theirs,  al-  not  be  maintained. 


AGENTS     AND     BKOKERS.  229 

safely  be  asserted  that  a  contract  under  seal  may  not  be 
turned  into  the  simple  contract  of  a  person  not  in  any  way  ap- 
pearing on  its  face  to  be  a  party  to  or  interested  in  it,'  on 
proof  dehors  the  instrument  that  the  nominal  party  was  act- 
ing as  the  agent  of  anoLher.- 

§21.  When  agent  becomes  personally  liable.  Where  an 
agent  undertakes  to  contract  on  behalf  of  an  individual  or 
corporation,  and  contracts  in  a  manner  wiiich  is  not  legally 
binding  ui)on  iiis  principal,  he  will  be  personally  responsible, 
as  he  is  presumed  in  such  case  to  know  the  exact  extent  of 
his  authority.^  This  is  an  elementary  rule  of  the  law  of  con- 
tracts; and  though  modern  decisions  have  in  a  great  measure 
relaxed  the  stringency  of  the  older  rules  relative  to  undisclosed 
principals,  and  permitted  an  inquiry  as  to  the  actual  parties, 
the  law  in  this  respect  is  usually  adhered  to  without  devi- 
ation.* 

Where,  however,  one  who  has  no  authority  to  act  as  an- 
other's agent  assumes  so  to  act,  and  makes  a  deed  or  a  simple 
contract  in  the  name  of  the  other,  he  is  not  as  a  rule  persvon- 
ally  liable  on  the  covenants  in  the  deed  or  the  ])romise  in  the 
simple  contract,  unless  it  contains  apt  words  to  bind  him  per- 
sonally.^ The  remedy  in  such  case  is  by  an  action  on  the  case 
for  falsely  representing  himself  to  be  authorized  to  bind  his 
principal."^    It  has  sometimes  been  sought,  in  a  case  of  this 

1  Huntington    v.    Knox,    7    Cush,  not  without  apparent  exceptions ;  and 

(Mass.)  374,  in  which  the  general  rule  an  agent  acting   without  authority 

is  declared  that,  "  where  a  contract  is  will  not,  it  seems,  be  held  personally 

made   by  deed   untler  seal  on  tech-  liable  when   the  want  of  autliority 

nical  grounds,  no  one  but  a  party  to  was  known  to  both  parties,  or  even 

the  deed  is  liable  to  be  sued  upon  it;  whei'e  it  was  unknown  to  both  par- 

and    therefore,  if    made    by  an  at-  ties.     See  Walker  v.  Hinze,  IG   111. 

torney  or  agent,  it  must  bo  made  in  App.  326. 

the  name  of  the  principal  in  order       <See  "Wheeler  v.  Reed,  36  111.  81; 

that    he    may   be  a  party,    because  McClellan    v.    Parker,    27    Mo.    102; 

otherwise  he  is  not  bound  by  it."  Royce  v.  jMlen,  28  Vt.  234. 

-This  is  especially  the  case  in  the       *  Abbey  v.  Chase,  6  Cush.  (Mass.)  54. 
absence  of  any  proof  that  the  alleged       ^Draper  v.  Steam   Heating  Co.  5 

principal   has  received    any   benefit  Allen  (Mass.),  338;  and  see  Hartlett 

from  it,  or  has  in  any  way  ratified  it.  v.    Tucker,    104  Mass.    339;  Grafton 

Briggs  V.  Partridge,  64  N.  Y.  357.  Bank  v.  Flanders,  4  N.  H.  239 ;  Weare 

'Merrill  v.Wilson,  6Ind.  420;  Pierce  v.  Gove,  44  N.  H.  190;  White  v.  Mad- 

V.  Johnson,  34  Conn.  274;  Mann  v.  ison,  26  N.  Y.  117;  Taylor  v.  Sheltou, 

Richardson,  66  111.  481.     This  rule  is  30  Conn.  122. 


230  CONTKACT    OF   SALE. 

character,  to  bind  the  agent  by  the  introduction  of  parol  evi- 
dence tending  to  show  that  in  signing  the  agreement  the  one 
who  purports  to  sign  as  agent  signed  the  name  of  the  principal 
for  his  own  benefit,  and  with  the  intention  to  bind  himself. 
This,  however,  has  always  been  denied  as  being  opposed  to 
the  fundamental  rule  that  parol  evidence  cannot  be  introduced 
to  vary  the  terms  of  a  written  agreement.  Nor  does  this  rul- 
ing militate  against  the  exception  ordinarily  allowed  in  the 
case  of  undisclosed  principals.  In  the  latter  case  parol  evi- 
dence is  admitted  to  show  who  is  meant  by  the  signature;  it 
doe3  not  vary  the  written  contract,  but  only  serves  to  identify 
the  real  contracting  party.  But  where  the  contract  discloses 
the  names  and  relations  of  the  parties;  where  it  purports  to 
be  the  act  of  the  principal,  and  where  the  agent  does  not  as- 
sume to  bind  himself, —  to  permit  to  be  shown  by  parol  testi- 
mony an  intention  exactly  contrary  to  that  expressed  on  the 
face  of  the  writing  would  be  a  direct  violation  of  a  cardinal 
rule  of  evidence. 

§  22.  When  principal  chargeable  with  agent's  acts.  As 
a  general  rule  a  principal  is  bound  by  acts  and  representations 
of  his  agent  respecting  the  subject-matter  of  the  agency,  if 
made  at  the  same  time  as  the  transaction,^  and  is  affected  with 
all  the  knowledge  the  agent  had  in  relation  thereto."  He  is 
not  only  responsible  for  those  contracts  which  have  been  act- 
ually made  under  his  express  authority,  but  will  be  bound  as 
well  in  those  cases  where  the  agent  is  acting  within  the  usual 
scope  of  his  employment,  or  is  held  out  to  the  public  or  to  the 
other  party  as  having  competent  authority,  although  in  fact 
he  has  in  the  particular  instance  exceeded  or  violated  his  in- 
structions and  acted  without  authority.^  Where  the  agent's 
authority  is  by  law  required  to  be  in  writing,  this  rule  cannot 
be  said  to  apply;  but  if  no  such  requirement  exists,  it  will  hokl 
good  in  matters  pertaining  to  the  sale  of  real  estate  equally 
with  purely  chattel  interests. 

It  is  a  further  rule,  however,  that  before  one  can  be  affected 
by  the  acts  and  declarations  of  another  as  his  agent,  the  agency 

1  Robinson  v.  Walton,  58  Mo.  380 ;   Bank  v.  Gregg,  14  N.  H.  331 ;  Echols 
Keough  V.   Leslie,   92  Pa,   St.    424 ;   v.  Dodd,  20  Tex.  190. 
Bennett  v.   Judson,   21   N.   Y.  238;       2  Hazleton  v.  Agate,  11  Rep.  559. 

3  See  Story,  Agency,  §  443. 


AGENTS     AND     I5I10KEKS.  231 

must  be  proved;'  and  where  iLe  question  is  as  to  the  extent 
of  the  agent's  powers,  it  must  first  be  shown  that  they  extend 
to  the  acts  or  declarations  in  question.'-  Thus,  the  owner  of 
property  is  not  bound  by  representations  made  concerning  it, 
without  his  uulliority  or  kncnvledge,  by  one  not  autliorized  to 
make  a  sale  of  it,  but  simply  to  procure  some  person  to  nego- 
tiate with  the  owner.' 

The  acts  and  declarations  of  an  agent,  made  after  the  trans- 
action to  which  they  relate,  arc  not  admissible  to  bind  the 
principal.' 

§  23.  Fraud  of  agent.  The  fraud  of  an  agent  will  be 
chargeable  to  the  principal  whenever  he  has  had  the  benefit  of 
the  fraud,'*  even  though  he  was  ignorant  of  it;"  and  usually 
whether  the  agent,  representing  a  material  fact,  knew  it  to  be 
false,  or  made  the  assertion  without  knowing  whether  it  was 
true  or  false,  is  wholly  immaterial.^  But  generally,  to  charge 
the  principal  with  his  agent's  wrong,  the  special  matter  whicli 
constitutes  the  wrongful  act  must  have  reference  to  the  ])ar- 
ticular  subject-matter  of  the  employment,  and  fall  strictly 
within  the  scope  of  the  agent's  authorit}'.* 

It  would  seem,  however,  that  where  an  agent  innocently 
makes  a  misrepresentation  of  facts  while  effecting  a  contract 
for  his  principal,  it  will  not  amount  to  fraud  on  the  part  of  the 
principal,  though  he  is  aware  of  the  real  state  of  facts,  if  he  is 
ignorant  of  the  misrepresentations  being  made  and  did  not 
direct  the  making  thereof.^  And  it  would  seem,  further,  that 
an  innocent  vendor  cannot  be  sued  in  tort  for  the  fraud  of  his 
agent  in  effecting  a  sale.  In  such  a  case  the  vendee  may  re- 
scind the  contract  and  reclaim  the  money  paid,  and  if  not  re- 
])aid  may  sue  the  vendor  for  it,  or  he  ma}'  sue  the  agent  for 
deceit."* 

So,  on  the  other  hand,  a  principal  may  maintain  an  action 

•Gibbs    V.    Holcomb,    1    Wis.    23;  6  Presley   v.  Parker,  56   N.  11.  409; 

Etnmons  v.  Dowe,  2  Wis.  322.  Bank  v.  Gregg,  14  N.  II.  331. 

^Coon  V.  Gurle3%  49  Ind.  199.  ^  Foard  v.  McComb,  12  Bush  (Ky.), 

» Lansing  v.  Coleman,  58  Barb.  (N.  723. 

Y.)  611.  «  Smith  v.  Tracy,  21  N.  Y.  79 ;  Ken- 

*  M.  &  M.  R.  R.  Co.  V.  Finney,  10  nedy    v.    Parke,    17   N.    J.    Eq.  415; 

Wis.  388.                                          "  Echols  v.  Dodd,  20  Te.x.  190. 

••Bennett  v.  Judson,  21  N.  Y.  238;  9 Kelly  v.  Ins.  Co.  3  Wis.  254. 

Johnson  v.  Barber,  10  III.  425.  >o  Kennedy  v.  McKay, 43  N.  J.  L.  288. 


232  CONTRACT   OF   SALE. 

gi'ounded  on  fraudulent  representations  made  to  his  agent, 
whereby  a  transfer  of  his  pro  pert}'  was  effected. • 

An  agent  may  be  held  responsible  for  his  fraudulent  actions 
by  any  person  in  privity  with  him  who  has  been  injured 
thereby;  and  where  the  agent  of  the  owner  of  property  makes 
representations  as  to  its  character  and  condition  which  are  re- 
lied on  by  the  purchaser  to  his  prejudice,  and  which  are  in 
fact  false  and  fraudulent,  and  unqualifiedly  made  by  such 
;>gent  as  of  his  own  knowledge,  the  purchaser  may  maintain 
an  action  against  him  for  damages. - 

§  24.  Notice  to  agent  binds  principal.  Tlie  rule  is  general 
that  knowledge  of  the  agent  is  knowledge  of  the  principal, 
who  is  chargeable  with  notice  of  all  facts  brought  home  to  the 
agent  while  engaged  in  the  business  and  negotiations  of  the 
principal.^  The  rule  is  based  upon  the  princii)le  that  it  is  the 
duty  of  the  agent  to  act  for  his  principal  upon  such  notice  or 
to  communicate  the  information  obtained  by  him  to  his  prin- 
cipal, so  as  to  enable  the  latter  to  act  upon  it.''  But  to  charge 
the  principal  with  implied  notice  of  facts,  because  the}"  were 
known  to  his  agent,  it  is  essential  that  the  knowledge  shall 
have  been  acquired  during  the  existence  of  the  agency,"*  and 
in  connection  with  the  business  upon  which  the  agent  is  en- 
gaged;** and  generally  a  principal  will  not  be  affected  by  knowl- 
edge communicated  to  his  agent  when  it  does  not  relate  to 
matters  which  are  connected  with  the  business  of  the  agent, 
or  which  are  not  w'ithin  the  scope  of  his  employment.'^    Xor 

'Ward   V.  Barkenhagen,   50  Wis.  to  the  knowledge  of  his  agent  in  ih; 

459.  investigation  of  the  title  does  not  ap- 

2  Clark  V.  Lovering,  37  Minn.  120.  ply  as  between  the  vendor  and  the 

"'  Walker  v.  Schreiber,  47  Iowa,  529;  purchaser ;  it  applies  only  as  between 

Bank  v.  Milford,  30  Conn.  93;  White-  the  purchaser  and  third  persons  hav- 

head  v.  Wells,  29  Ark.  99;  Pringle  v.  iiig  prior  equitable  rights.    Champlin 

Dunn,  37  Wis.  449;  Allen  v.  Poole,  v.  Laytin,  18  Wend.  (N.  Y.)  407. 

54  Miss.  323;  Meier  v.  Blume,  80  Mo.  »  Weiser  v.  Dennison,  10  N.  Y.  68; 

179;  Hovey  v.  Blanchard,  13  N.  H.  Pepper  v.  George,  51  Ala.  190;  House- 

145;   Farrington   v.    Woodward,    83  man  v.  Girard  Assoc.  81  Pa.  St.  256. 

Pa.  St.  259.  6  McCormick  v.  Wheeler,  36  111.  114; 

^Frenkel  v.  Hudson,  83  Ala.  158;  Blutnenthal  v.  Brainerd,  38  Yt.  403; 

Pringle  v.  Dunn,  37  Wis.  449.     The  Roach  v.  Karr,  IS  Kan.  529. 

rule  that  a  purchaser  is  in  equity  'Roach  v.  Karr,  18  Kan.  539:  Mor- 

cliargeable  with  constructive  notice  rison    v.  Bausemer,   33  Gratt.  (Va.) 

of  the  contents  of  a  deed  which  came  225. 


AGENTS     AND     BROKEKS.  233 

docs  tho  rule  apply   where  the  agent  acts  for  himself  in  his 
own  interest,  and  adversely  to  that  of  tho  principal.' 

It  was  formerly  the  rule  in  England  that  notice  to  an  agent, 
in  order  to  bind  his  princi])al  by  constructive  notice,  must  be 
in  the  same  transaction;  but  in  later  cases  this  rule  has  been 
very  much  modified,  and  Mr.  Justice  Bradley,  in  delivering 
the  oi)inion  of  the  supreme  court  of  the  United  States,-  states 
the  doctrine  in  England  as  tliat  if  the  agent  at  the  time  of 
effecting  a  purchase  has  knowledge  of  any  prior  lien,  trust  or 
fraud  affecting  the  property',  no  matter  when  he  acquired  such 
knowledge,  his  principal  is  affected  thereb3\  If  he  acquire 
the  knowledge  when  he  eflfects  the  purchase,  no  question  can 
arise  as  to  his  having  it  at  that  time.  If  he  acquired  it  previous 
to  the  purchase,  the  presumption  that  he  still  retains  it  and 
has  it  present  in  his  mind  will  depend  upon  facts  and  other 
circumstances.  And  the  learned  justice  concurs  in  the  rule 
as,  in  his  judgment,  the  true  one  —  fairly  deducible  from 
the  best  consideration  of  the  reasons  on  which  it  is  founded. 
In  some  other  American  cases  the  doctrine  that  the  knowledge 
of  an  airent  should  come  to  him  in  the  identical  transaction 
has  been  to  some  extent  modified,  and  it  has  been  held  that  it 
is  not  necessary  in  all  cases  that  the  notice  should  be  thus 
given;*  but  from  all  the  cases  it  seems  that  the  farthest  that 
has  been  gone  in  the  way  of  holding  a  principal  chargeable 
with  knowledge  of  facts  communicated  to  his  agent,  where  tho 
notice  was  not  received,  or  the  knowledge  obtained,  in  the  very 
transaction  in  question,  has  been  to  hold  the  principal  charge- 
able upon  clear  proof  that  the  knowledge  which  the  agent 
once  had,  and  which  he  obtained  in  another  transaction  at 
another  time  and  for  another  principal,  was  present  to  his 
mind  at  the  very  time  of  the  transaction  in  question.* 

1  His  adversarj'  character  and  an-  under  such  circumstances;  and  such 

tagonistic  interests  take  him  out  of  is  the  established  rule  of  law  on  this 

the  operation  of  the  general  rule,  for  subject.    Frenkel  v.  Hudson,  82  Ala. 

two  reasons:  (1)  That  he   will  very  158;     Wickersiiam   v.    Zinc    Co.    18 

likely  act  in  such  a  case  for  himself,  Kan.  481. 

rather  than  for  his  principal;  and  (i)  -The  Distilled  Spirits,  11  Wall.  (U. 

he  will  not  he  likely  to  communicate  S.)  o'lG. 

to  the  principal  a  fact  which  he  is  ^  Cra;^io  v.  Hadley,  99  X.  Y.  131. 

interested  in  concealing.     It  would  *  Constant  v.  University,  111  N.  Y. 

bo  both  unjust  and  unreasonable  to  C04;  Yerger  v.  Barz,  50  Iowa,  77, 
impute  notice  by  mere  construction 


234  CONTRACT   OF   SALE. 

The  general  rule  that  notice  of  a  fact  acquired  by  an  agent 
while  transacting  the  business  of  his  principal  operates  con- 
structively as  notice  to  the  principal  applies  as  well  to  corpo- 
rations as  to  natural  persons.' 

§  25.  Agent  dealing  for  his  own  benefit.  An  agent  under- 
taking any  business  for  another  is  disabled  in  equity  from 
dealing  in  the  matter  of  the  agency  upon  his  own  account  or 
for  his  own  benefit;  and  if  he  does  so  in  his  own  name  he  will 
be  considered  as  holding  in  trust  for  his  principal.^  No  rule  ob- 
tains a  wider  recognition  or  more  strict  enforcement ;  for  equity 
requires  and  will  exact  the  utmost  fidelity  and  loyalty  to  their 
principals  from  fiduciaries  of  every  sort,  and  will  strip  them 
of  every  advantage  obtained  by  a  breach  of  trust  and  confi- 
dence.^ 

In  accordance  with  the  foregoing  rule  it  has  been  held  that 
an  agent  cannot  become  the  purchaser  of  property  confided  to 
his  care,*  and  that  a  purchase  made  under  such  circumstances 
carries  fraud  upon  its  face.^  But  this,  perhaps,  is  carrying  the 
application  of  the  rule  to  extreme  lengths;  for  the  true  spirit 
and  meaning  of  the  rule  is  that  the  agent  shall  not  so  act  to- 
Avard  the  subject  of  the  agency  for  his  own  benefit  as  to  work 
injury  to  his  principal.^  He  will  not,  therefore,  be  allowed  to 
purchase  where  he  has  a  duty  to  perform  which  is  inconsistent 
with  the  character  of  purchaser,'  nor  to  speculate  for  his  pri- 
vate gain  with  the  subject-matter  committed  to  his  care.^    This 

1  Reid  V.  Bank  of  Mobile,  70  Ala.  6  Dood  v.  Wakeman,  26  N.  J.  Eq. 

199.  484;  Sheldon  v.  Rice,  30  Mich.  296; 

-i  Kriitz  V.  Fisher,  8  Kan.   90;  Gil-  Goodwin  v.  Goodwin,  48  Ind,  584. 

lenwater  V.  Miller,  49  Miss.  150 ;  Fire-  '  Grumley  v.   Webb,   44  Mo.  444; 

stone  V.  Firestone,  49  Ala.  128;  Wil-  Blauvelt  v.  Ackerman.  20  N.  J.  Eq. 

her  V.  Hough,  49  Cal.  290 ;  Bain  v.  141 ;   Boerum   v.  Schenck,  41  N.  Y. 

Brown,  56  N.  Y.  285.  182. 

SGiilenwater    v.    Miller,   49    Miss.  « Grumley  v.  Webb,   44  Mo.    444; 

150;  Barziza  v.  Story,  39  Tex.  354;  Roberts    v.    Roberts,   65    N,    C.    27; 

Dood  V.  Wakeman,  26  N,  J.  Eq.  484;  McGowan  v.  McGowan,  48  Miss.  553. 

Rogers  v.  Locket,  28  Ark.  290;  Con-  It  has  been  held  in  Illinois  that  tlm 

key  V.  Bond,  36  N.  Y.  403.  doctrine  that  an  agent  cannot,  either 

<  Rogers  v.  Locket,  28  Ark.    290;  directly  or  indirectly,  have  an  inter- 

Prevost  V.  Gratz,  6  Wheat.    (U.  S.)  est  in  tlie  sale  of  the  property  of  his 

481 ;  Case  v.  Carroll,  35  N.  Y.  389.  principal,  wliich  is  within  the  scope 

5  Rogers  v.   Locket,  28  Ark.    290 ;  of  his  agency,  applies  to  the  wife  of 

Cook  V.  Berlin  Mill  Co.  43  Wis.  433.  an  agent  who  purchases  the  property 


AGENTS    AND    BROKERS. 


9?..' 


may  be  rcf^ardcd  as  the  true  extent  of  the  rule;  and  an  agent 
placing  hiniscir  beyond  it  may  hnvfidly  contract  with  his  princi- 
pal with  relation  to  the  property.  Yet  a  confidential  relation,  like 
princij)al  and  agent,  gives  cause  for  susi)icion;  and  the  circum- 
stances under  which  a  deed  is  made  should  be  closely  scanned, 
and  if  a  reasonable  suspicion  exists  that  confidence  has  been 
abused  wliere  reposed  it  will  be  set  aside.'  In  order,  iherefore, 
to  sustain  a  purchase  by  an  agent  from  his  principal  of  prop- 
erty which  formed  the  subject  of  the  agency  and  to  secure  the 
sanction  of  a  court  of  equity  for  it,  the  agent  must  be  able  to 
show  it  to  be  fair  and  honest,  and  to  have  been  preceded  by 
the  disclosure  of  what  he  had  ascertained  or  discovered  con- 


with  her  separate  estate.  The  court 
bays:  "  Such  a  sale,  at  common  law, 
would  clearly  have  been  voidable, 
both  because  the  wife  there  had  no 
independent  power  to  contract  and 
because  the  husband  would  have 
taken  an  estate  during  coverture  in 
the  piopert}'.  See  1  Sliars.  BI.  Comm. 
441,  442;  Reeves,  Dom.  Rel,  (2d  ed.) 
m,  9!),  and  also  id.  28.  Notwith- 
standing that  our  statute  lias  so  far 
changed  the  common  law  that  the 
wife  can  now  contract  with  the  hus- 
band, and  has  abolished  his  estate 
(luring  coverture,  it  lias  not  denied  to 
each  all  interest  in  the  property  of  the 
other.  The  husband  is  still  the  head 
of  the  family  ;  and  the  expenses  of  the 
family  and  of  the  education  of  the 
children  are,  by  section  15  of  the  stat- 
ute in  relation  to  husband  and  wife, 
"charged  upon  the  property  of  both 
Imsband  and  wife,  or  of  either  of 
them,  in  favor  of  creditors."  Rev. 
St.  1874,  p.  577.  Upon  the  death  of 
the  wife,  intestate,  without  children 
surviving,  the  husband  inherits  one- 
half  of  her  real  estate  (id.  ch.  39,  §  1); 
and,  in  any  event,  upon  her  death, 
ho  is  entitled  to  dower  in  lier  real  es- 
tate. Hence,  the  husband  still  has  a 
pecuniary  interest,  greater  or  less,  as 
circumstances  may  vary,  in  all  the 
real  estate  of  which  his  wife  may  bo 


owner  during  coverture.  There  is, 
moreover,  apart  from  this  pecuniary 
interest,  an  intimacy  of  relation  and 
affection  between  husband  and  wife, 
and  of  mutual  influence  of  the  one 
upon  the  other  for  their  common  wel- 
fare and  happiness, that  is  absolutely 
inconsistent  with  the  idea  that  the 
husband  can  occupy  a  disinterested 
position  as  between  his  wife  and  a 
stranger  in  a  business  transaction. 
He  may,  by  reason  of  his  great  integ- 
rity, be  just  in  such  a  transaction, 
but  unless  his  max-ital  relations  be 
perverted  he  cannot  feel  disinter- 
ested ;  and  it  is  precisely  because  of 
this  feeling  of  interest  that  the  law 
forbids  that  he  shall  act  for  himself 
in  a  transaction  with  his  principal. 
It  is  believed  to  be  within  general  ob- 
servation and  experience  that  he  who 
will  violate  a  trust  for  his  own  pecun- 
iary profit  will  not  hesitate  to  do  it, 
under  like  circumstances,  for  the 
pecuniary  profit  of  his  wife.  In  our 
opinion  the  policy  of  the  law  eijually 
prohibits  the  wife  of  the  agent,  as  it 
does  the  agent  himself,  from  taking 
title  to  the  property  which  is  the  sub- 
ject of  his  agency  without  the  knowl- 
edge and  express  consent  of  the  prin- 
cipal."    Tyler   v.    Sanborn, III. 

(1889). 

»  Uhlrich  v.  Muhlke,  61  111.  499. 


236  CONTRACT   OF   SALE. 

cerning  its  value;  and  in  every  case  where  the  nature  of  the 
agency  has  given  the  agent  control  in  the  management  of  the 
})roperty  and  peculiar  opportunities  for  knowing  its  condition 
and  value,  a  purchase  of  it  by  tlie  agent  will  be  avoided  at  the 
suit  of  the  ])rincipal,  unless  the  agent  make  it  affirmatively 
appear  that  the  transaction  was  fair,  and  that  ho  imparted  all 
his  information  to  the  principal  and  acted  with  the  most  per- 
fect good  faith.' 

But  while  the  agent  may,  under  some  circumstances,  become 
the  purchaser  of  the  property  from  the  principal,  under  no  cir- 
cumstances can  he  derive  any  advantage  from  any  other  source. 
Whatever  may  be  gained  by  him,  whether  as  the  fruit  of  per- 
formance or  of  violation  of  duty,  belongs  to  his  principal.- 
Hence  he  cannot,  after  discovering  a  defect  in  the  title  of  the 
land  of  his  principal  in  the  course  of  his  agency  in  relation 
thereto,  misuse  his  discovery  to  acquire  a  title  for  himself;' 
nor  can  he  acquire  a  tax  title,  as  against  his  principal,  to  the 
lands  of  the  agenc}'.*  So,  too,  an  agent  authori;^ed  by  his 
principal  to  sell  the  latter's  land  for  a  specified  net  sum,  and 
to  receive  for  his  services  all  above  that  sum  for  which  he 
might  sell,  is  bound  to  disclose. to  his  principal  a  fact  in  the 
condition  of  the  land  increasing  its  value,  which  he  afterwards 
learns,  and  of  which  his  principal  was  ignorant  when  he  fixed 
the  price;  and  a  sale  by  him  on  the  basis  of  the  sum  fixed 
without  givino:  such  information  is  a  fraud.'^ 

The  rule  forbidding  conflict  between  interest  and  duty  is  no 
respecter  of  persons.  It  imputes  constructive  fraud,  because 
the  temptation  to  actual  fraud  and  the  facility  for  concealing 
it  are  so  great;  and  it  imputes  it  to  all  alike  who  come  within 
its  scope,  however  much  or  however  little  open  to  suspicion  of 
actual  fraud." 

The  spirit  no  less  than  the  letter  of  the  rule  not  only  pro- 
hibits direct  conveyances,  but  with  stronger  reason  declares 

1  Cook  V.  Berlin  Mill  Co.  43  Wis.  he  first  distinctly  notify  the  principal 
433;  Brown  v.  Post,  1  Hun  (N.  Y.),  that  he  renounces  the  agency.  Mc- 
304.  Mahon  v.  McGravs-,  2G  Wis.  614. 

2  Dood  V.  Wakeman,  26  N.  J.  Eq.  5  Hegenmyer  v.  Marks,  37  Minn.  6. 
484.  6  Cook  V.  Berlin  Mill  Co.  43  Wis. 

3  Rogers  v.  Locket,  28  Ark.  290.         433. 
*  Krutz  V.  Fisher,  8  Kan.  90.  Unless 


AGENTS    AND    HKOKKKS.  lli.j » 

void  a  purchase  in  an  indirect  or  circuitous  manner.  Hence, 
if  one  employed  as  an  agent  to  sell  property  arranges  with  the 
purchaser  for  an  interest  in  the  purchase,  the  sale  will  be  set 
aside  at  the  instance  of  the  priucijial.' 

The  spirit  of  the  rule  which  pr(;hibits  the  agent  from  deal- 
ing with  the  subject  of  the  agency  to  his  own  advantage 
extends  the  application  of  the  principle  to  those  whom  he  may 
employ  as  instrumentalities  in  effecting  the  purposes  of  his 
business.  Hence  a  clerk  or  other  person,  who,  by  his  connec- 
tion with  an  agent,  or  by  being  employed  or  concerned  in  his 
affairs,  has  acquired  a  knowledge  of  the  property,  labors  under 
the  same  incapacity  as  the  agent.-  Thus,  the  purchase  of  land 
by  the  clerk  of  a  broker  employed  to  make  a  sale  of  such  land 
will  render  the  clerk  a  trustee  for  the  vendor.' 

§  2G.  The  right  to  eoinmissions.  It  requires  no  citation  of 
authority  to  sustain  the  principle  that,  where  a  sale  has  been 
made  and  consummated  through  theinstrumentality  of  a  broker 
or  agent,  he  is  entitled  to  Avhatever  commission  ma}-  have  been 
stipulated  for,  or,  in  the  absence  of  an  express  contract,  to  a  rea- 
sonable compensation  for  his  services.  It  is  not  essential,  how- 
ever, to  fix  the  right  to  commissions  that  a  sale  should  in  all  cases 
result  from  the  agent's  efforts  —  the  obligation  of  his  undertak- 
ing is  simply  to  bring  the  buyer  and  seller  to  an  agreement;* 
and  this  he  fully  accomplishes  when  he  has  produced  a  person 
ready  and  willing  to  purchase  the  propert}''  on  the  prescribed 
terms.'^     Having  thus  acquitted  himself  of  the  only  duty  which 

I  Miller  V.   R.   R.   Co.  83  Ala.  274;  Soo;  Plielan  v.  Gardner,  43  Cal.  OOG: 

and   see    Hegenniycr    v.    Marks,    37  Bell  v.  Kaiser,  iJO  Mo.  150;  Edwards 

Minn.  6.  v.  Goldsmith,  10  Pa.  St.  43;  Jones  v. 

^Coffee  V.   Ruffin,  4  Cold.  (Tenn.)  Adier,  34  Md.  440;  Hamlin  v.  Schulte. 

510;  Wade  v.  Harper,  3  Yerg.  (Tenn.)  34  Minn.  534;  Vinton  v.  Baldwin.  88 

383;  Oliver  v.  Piatt,  3  How.  (U.  S.)  Ind.  104;  Do  Laplaine  v.  Turnley,  44 

333.  Wis.   31 ;   Hoyt  v.    Shipherd,  7U  III. 

3  Gardner  v.  Ogden,  22  N.  Y.  349;  309;  Leete  v.  Norton,  43  Conn.  219. 

Beeson  v.  Beeson,  9  Pa.  284;  Rosen-  The  purchaser  must,  of  course,  have 

berger's  Appeal,  26  Pa.  67.  the  ability  to  comply  as  well  as  ex- 

*  Sibbald  v.  Bethlehem  Iron  Co.  83  hibit  a  willingness  so  to  do.     Cole- 

N.  Y.  378;  Knapp  v.  Wallace,  41  N.  man  v.  Meade,  13  Bush  (Ky.),  358; 

Y.  477;  Hinds  v.  Henry,  36  N.  J.  L.  Kimberly  v.  Henderson,  29  Md.  512; 

328.  Hinds  v.  Henry,  30  N.  J.  L.  S-'S.    But 

5  Wylie  V,  Marine  Bank,  61  N.  Y.  in  an  action  by  a  broker  for  his  com- 

415;  Tombs  v.  Alexander,  101  Mass.  missions  he  makes  out  a  prima /aci'c 


238  CONTRACT   OF    SALE. 

the  law  imposes  his  commissions  are  regarded  as  earned;  and 
the  principal  cannot  relieve  himself  from  liability  therefor  by 
a  capricious  refusal  to  consummate  the  sale/  or  by  a  volun- 
tary act  of  his  own  disabling  him  from  performance.-  So, 
also,  if  after  the  agent  has  produced  an  acceptable  purchaser, 
and  the  contract  has  been  signed,  the  latter  refuses  to  com- 
plete the  agreement  on  account  of  fraud  or  misrepresentation 
on  the  part  of  the  owner'  or  for  defects  in  the  title,*  the  right 
to  compensation  will  still  remain  unimpaired,  provided  the 
agent  himself  is  without  fault.^  Again,  after  negotiations 
begun  through  a  broker's  intervention  have  virtually  culmi- 
nated in  a  sale,  he  cannot  be  discharged  so  as  to  deprive  him  of 
his  commissions;  and  if  it  be  satisfactorily  shown  that  the 
broker  was  the  procuring  cause  of  the  sale  he  will  be  awarded 
compensation  notwithstanding  such  discharge.'' 

In  all  cases  where  a  sale  has  been  effected,  however,  to  fix 
the  broker's  rights,  it  must  have  been  the  direct  result  of  his 
exertions.  This  seems  to  be  the  indispensable  condition  to  a 
right  of  recovery  on  his  part;  but,  in  regard  to  the  extent  or 
character  of  such  exertions,  there  is  no  fixed  standard  or  rule 

case  when  he  shall  have  proved  the  Love  v.  Miller,  53  Ind.  294;  Pearson 
introduction  by  him  to  the  vendor  of  v.  Mason,  120  Mass.  53;  Leetev.  Nor- 
a  person  willing  to  purchase  on  the  ton,  43  Conn.  295.  It  has  been  held, 
terms  at  which  he  has  been  author-  hovpevcr,  that  where  a  purchaser 
ized  b}'  the  vendor  to  sell.  It  is  not  refuses  to  complete  a  sale  of  real 
necessary  for  him  to  prove  in  the  first  estate  on  a  flimsy  objection  to  the 
instance  that  the  person  introduced  title,  and  the  broker  has  failed  to  re- 
was  of  sufficient  pecuniary  ability  to  duce  the  contract  to  writing  so  that 
pay  the  price.  On  this  question  the  no  action  for  a  specific  performance 
burden  of  proof  is  on  the  defendant  will  lie,  the  broker  is  not  entitled  to 
to  prove  the  contrary.  Cook  v.  his  commissions  from  the  owner. 
Kroemeke,  4  Daly  (N.  Y.),  268.  Gilchrist  v.  Clarke  (Tenn.),  8  S.  W. 

'  De  Laplaine  v.  Turnley,  44  Wis.  Rep.  572. 

31 ;  Stewart  v.  Murray,  92  Ind.  543 ;  ^  As  where  the  broker  knew  the  title 

Moses  V.  Burling,  31  N.  Y.  462;  Phe-  was  defective.    Tombs  v.  Alexander, 

Ian  V.  Gardner,  43  Cal.  306;  Tyler  v.  101  Mass.  255. 

Pars,  52  Mo.  249.  « Attrill   v.  Patterson,  58  Md.  226; 

-Reed's  Executors  v.  Reed,  82  Pa.  Keys  v.  Johnson,  68 Pa.  St.  42;  Vree- 

St.   420;  Lane  v.  Albright,  49  Ind.  land  v.  Vetterlein,  33  N.  J.  L.  247; 

275;  Nesbit  v.  Helser,  49  Mo.  383.  Goss  v.  Steavens,  32  Minn.  472;  Phe- 

SGlentworth   v.    Luther.  21    Barb.  Ian  v.  Gardner,  43  Cal.  306;  Bell  v. 

(N.  Y.)  145.  Kaiser,  50  Mo.  150. 

4Knapp  V.  Wallace,  41   N.  Y.  477; 


AGENTS    AND    JJKoKKKS.  239 

ot  measurement.  Indeed,  it  would  seem  tliat  any  effort,  liow- 
ever  slight,  wliicli  actually  operated  to  induce  the  vendee  to  pur- 
chase would  he  sufficient  to  entitle  the  hroker  to  remuneration.' 
On  the  other  hand,  if  the  services  of  the  broker,  however  ardu- 
ous, have  failed  in  the  accomplishment  of  a  sale  in  the  first  in- 
stance, and  as  a  result  the  negotiations  have  been  definitely 
abandoned,  notwithstanding  other  and  supervening  influences 
may  have  eventually  induced  the  vendee  to  reconsider  his  res- 
<jlutit)n  and  make  the  jmrchase,  the  broker  will  not  l)e  aljle  to 
claim  commissions.-     This,  however,  must  be  taken  with  one 

'Pope  V.  Beals,  108  Mass.  561;  2  Earp  v,  Cummins,  04  Pa.  St.  394 ; 
Jones  V,  Adler,  34  Md.  440.  Tlius,  if  Lipe  v.  Ludewiclc,  14  Hi.  App.  372; 
a  real  estate  broker  communicate  in-  Livezey  v.  Miller,  Gl  Md.  22C;  Wylie 
formation  regarding  property  in  his  v.  Marine  Bank,  61  N.  Y.  415.  As 
hands  to  one  who  reports  it  to  a  remarked  by  the  court  in  Sibbald  v. 
friend,  who  subsequently  purchases  Iron  Co.  S3  N.  Y.  378:  "The  risk  of 
it  from  the  owner  directly,  the  failure  is  wlioliy  his.  Tiie  reward 
broker  must  be  regarded  as  tlie  pro-  comes  only  with  success.  That  is 
curing  cause  of  the  sale,  and  there-  the  plain  contract  and  contemplation 
fore  entitled  to  his  commission,  even  of  the  parties.  The  broker  may  de- 
though  he  may  have  had  no  personal  vote  his  time  and  labor  and  expend 
intercourse  or  dealing  with  tiie  pur-  his  money  with  ever  so  much  of  de- 
chaser.  Lincoln  v.  McClatchie,  36  votion  to  the  interests  of  his  em- 
Conn.  136;  and  see  Sussdorff  v.  ployer,  and  yet  if  he  fails,  if,  without 
Schmidt,  55  N,  Y.  320;  Carter  v.  effecting  an  agreement  or  accom- 
Webster,  79  111.  435;  Earp  v.  Cum-  plishing  a  bargain,  he  abandons  the 
mins,  54  Pa.  St.  394  —  all  of  which  sus-  effort,  or  his  authority  is  fairly  and 
tain  the  doctrine  of  the  text.  When-  in  good  faith  terminated,  he  gains  no 
ever  the  broker  is  the  "procuring  right  to  commissions.  He  loses  the 
cause"  the  right  to  commissions  be-  labor  and  effort  which  was  staked 
comes  fixed — hs  wliere  a  broker  ad-  upon  success;  and  in  such  event  it 
vertised  property  at  his  own  expense  matters  not  that,  after  his  failure 
and  a  third  person  seeing  it  directed  and  the  termination  of  his  agency, 
a  purchaser  to  the  owner.  Anderson  what  he  has  done  proves  of  use  and 
V.  Cox,  16  Neb.  10;  but  see  Charlton  benefit  to  the  principal.  In  a  multi- 
v.  Wood,  11  Heisk.  (Tenn.)  19.  So,  tude  of  cases  this  must  necessarily 
also,  where  a  purchaser  attracted  to  result.  He  may  have  introducetl  to 
the  property  by  the  broker's  signs,  each  other  parties  who  otherwise 
advertisements,  etc.,  opens  negoti-  would  have  never  met :  he  may  have 
ations  with  the  owner  direct.  Suss-  created  impressions  whicli,  under 
dorff  V.  Sc-limidt,  55  N.  Y.  319.  It  later  and  more  favorable  circum- 
must  be  understood,  however,  that  stances,  naturally  lead  to  and  mate- 
in  all  such  cases  the  broker  must  be  rially  assist  in  the  consummation  of 
under  due  employment  by  the  owner,  a  sale;  he  may  have  planted  the  very 
Ilanford  v.  Shapter,  4  Daly  (N.  Y.),  seeds  from  which  others  reap  the 
243.  harvest, —  but  all  that  gives  him  no 


240  CONTRACT    OF    SALE. 

important  and  necessary  limitation.  If  the  efforts  of  tlic 
broker  are  rendered  a  failure  by  the  fault  of  the  employer 
then  he  may  still  claim  commissions,  upon  the  familiar  princi- 
ple that  no  one  can  avail  himself  of  the  non-pcrforraance  of  a 
condition  precedent  who  has  himself  occasioned  its  non-per- 
formance. l>ut  this  limitation  is  not  even  an  exception  to  the 
general  rule  affecting  the  broker's  right;  for  it  goc^s  on  the 
ground  that  the  broker  has  done  his  duty,  and  that  he  has 
brought  buyer  and  seller  to  an  agreement;  but  that  the  con- 
tract is  not  consummated  and  fails  through  the  after-fault  of 
the  seller.^ 

As  a  furtlier  requisite  to  enable  a  broker  to  recover  com- 
missions he  must  have  been  expressly  emj)loyed  {;r  authorized 
by  his  principal  to  conduct  the  necessary  negotiations,  or  such 
must  be  inferred  as  an  implication  of  law  from  the  fact  that 
the  principal  subsequently  avails  himself  of  the  broker's  serv- 
ices.- If  the  vendor  refuses  to  employ  the  broker,  the  mere 
fact  that  he  sends  a  customer  who  eventually  buys  will  not 
entitle  him  to  compensation.^ 

If  by  a  special  contract  the  broker  is  not  to  receive  any 
compensation  unless  the  property  is  sold  at  a  stated  price,  he 
is  not  entitled  to  commissions  unless  the  property  is  sold  at 
that  price,  or  unless  he  produces  a  purchaser  who  is  willing  to 
pay  it;*  but  the  mere  fact  that  the  broker  has  agreed  with  a 
purchaser  to  sell  land  on  different  terms  from  those  contained 
in  his  instructions  will  not  affect  his  rights  if  the  princii)al 
subsequently  ratifies  the  agreement;  for  such  ratification  will 
be  held  equivalent  to  prior  authority,  and  the  principal  will  be 
bound  for  the  amount  of  commissions  agreed  upon.'^  So,  too, 
where  the  terms  of  the  sale  arc  fixed  by  the  vendor  in  accord- 
claim.  It  was  part  of  his  risk  that,  a  description  of  property  with  a  real 
failing  himself,  not  successful  in  ful-  estate  broker,  accompanied  by  a  re- 
filling his  obligation,  others  might  be  quest  to  sell  at  certain  terms  and  for 
left  to  some  extent  to  avail  themseh-es  a  certain  price,  is  a  sufficient  contract 
of  the  fruit  of  his  labors."  of  employment.     Long   v.    Herr,  10 

1  Sibbald  v.  Iron  Co.  83  N.  Y.  37S.    C.o\o.  SSO. 

2Atwater  V.  Lockwood,  89  Conn,       3  Atwater  v.  Lockwood,  39Conn.45. 
45;  Hinds  v.  Henry,  36  N.  J.  L.  328;       ^Schwartze  v.  Yearly,  31  Md.  270; 
Twelfth  Co.  V.  Jackson,  103  Pa.  St.    Briggs  v.  Roue,  I  Abb.  (N.  Y.)  App. 
296;  Canby  v.  Frick.  8  Md,  163;  Red-    Dec.  189. 
field  V.  Tegg,  38  N.  Y.  212,     Leaving       &  Nesbit  v,  Helser,  49  Mo,  383. 


AGENTS    AND    BROKERS.  24:1 

ance  with  which  the  broker  undertakes  to  produce  a  pur- 
chaser. Yet  if,  upon  the  procurement  of  the  broker,  a  pur- 
chaser comes  with  whom  the  vendor  negotiates,  and  thereupon 
voluntarily  reduces  the  price  of  the  property  or  the  quantity, 
or  otlierwise  changes  the  terms  of  sale  as  proposed  to  the 
broker,  so  that  a  sale  is  consummated,  or  terms  or  conditions  arc 
offered  which  the  proposed  buyer  is  ready  and  willing  to  ac- 
cept, in  either  case  the  broker  will  be  entitled  to  his  commis- 
sion at  the  rate  specified  in  his  agreement  with  his  principal.' 

§  27.  Continued  —Where  mwe  than  o»e  broker  is  em- 
ployed. "Where  several  brokers  are  avowedly  emi)loyed,  the 
entire  duty  of  the  vendor  is  performed  by  remaining  neutral 
between  them,  and  he  will  have  the  right  to  make  the  sale  to 
a  buyer  produced  by  any  of  them  without  being  called  upon 
to  decide  between  the  several  agents  as  to  which  of  them  was 
the  primary  cause  of  the  purchase.^  So,  also,  if  a  broker  who 
first  procures  a  purchaser  reports  his  offers  to  his  principal 
without  identifying  the  person  from  whom  they  came,  he  can- 
not recover  commissions,  in  case  of  a  subsequent  sale  through 
another  broker  at  the  same  price  to  the  same  purchaser,  unless 
it  appears  in  evidence  that  the  vendor  knew  this  fact,  or  that 
notice  was  given  him  by  the  agent  before  the  completion  of 
the  contract  and  paj'ment  of  commissions  to  the  second  broker. 
If  there  be  but  one  broker  emi)loyed  he  can  with  safety  with- 
hold the  name  of  the  purchaser  until  the  sale  shall  have  been 
made;  but  as  the  employment  of  one  broker  does  not  preclude 
the  employment  of  another  to  procure  a  ])urcliaser  for  the 
same  propertv,  it  becomes  the  duty  of  the  broker  who  pro- 
cures one,  and  who  looks  to  the  security  of  his  commissions, 
to  report  the  name  and  offer  to  his  principal  that  the  latter 
may  be  notified  in  time,  and  thus  put  upon  his  guard  before  he 
pays  the  commissions  to  either.^ 

The  foregoing  principles  are  in  full  accordance  with  good 
business  metliods,  and  are  such  as  are  generally  accepted  in 
real  estate  transactions.     In  some   instances  a  different  rule 

^  Stewart  v.   ^Mather,  32  "Wis.  344 ;  pay  the  one  who  does  in  fact  efifect 

Woods  V.  Stephens,  46  Mo.  555.  the  sale,  and  cannot  exercise  his  op- 

^Vreeland  v.  Vetterlein,  33  N.  J.  tion.     Eggleston  v.  Austin,  27  Kan. 

L.  247.     But  where   the  owner  eui-  245. 

ploys  several  brokers,  he  is  bound  to  3  Tinges  v.  Moalc,  25  Md.  480. 
16 


242  CONTKACT    OF    SALE. 

has  been  announced;  and,  upon  the  principle  that  until  the 
authority  given  to  a  broker  has  been  revoked  and  notice  of 
such  fact  communicated  to  him,  his  agency  continues,  it  has 
been  held  that,  where  more  than  one  broker  has  been  em- 
ployed, each  will  have  a  right  to  find  a  purchaser  and  earn  a 
commission.^  There  would  be  no  injustice  in  this,  however,  if 
knowledge  of  the  employment  of  the  different  agents  were 
kept  from  them ;  or  if,  when  the  property  has  been  sold,  the 
unsuccessful  broker  is  not  notified  of  that  fact,  for  where  a 
party  engages  the  services  of-anotlier  to  assist  him  in  making 
a  trade  of  property,  if  he  desires  to  dispense  with  such  serv- 
ices he  should  give  the  other  party  notice;  if  he  does  not, 
and  the  service  is  rendered,  he  will  be  required  to  pay  for  the 
same.^ 

§  28.  Continued  —  Sale  by  owner  witliout  broker's  inter- 
ference. A  person  who  has  employed  a  broker  to  sell  his 
estate  may,  notwithstanding,  negotiate  a  sale  himself;  and  if 
he  does  so  without  any  agency  or  participation  of  the  broker, 
he  will  not  be  liable  to  him  for  commissions."  The  same  rule 
obtains  even  where  the  broker  has  introduced  a  person  with 
whom  he  has  been  negotiatin"-,  where  such  negotiations  have 
afterward  been  abandoned,  and  the  principal  without  assist- 
ance from  the  broker  subsequently  completes  the  transaction.* 
But  where  a  broker  Avho  is  emplo^'^ed  to  sell  property  at  a 
given  price  and  for  an  agreed  commission  has  opened  a  nego- 
tiation with  a  purchaser,  and  the  principal,  without  terminat- 
ing the  agency  or  the  negotiation  so  commenced,  takes  it  into 
his  own  hands  and  concludes  a  sale  for  a  less  sum  than  the 
price  fixed,  the  broker  is  entitled  at  least  to  a  ratable  portion 
of  the  agreed  commission.^     The  mere  fact,  liowever,  that  a 

iSee  Bash   v.  Hill,  62  111.  216.     In  2  Bash  v.  Hill,  62  111.  216. 

Fox    V.    Rouse,    47    Mich.    558,   the  3  Dolan  v.    Scanlan,   57  Cal.   261; 

plaintiff  had  been  employed  by  de-  Dubois    v.    Dubois,    54   Iowa,    216; 

fendant  to  effect  a  sale.     He  found  a  Stewart  v.  Murray,  92  Ind.  543;  Mc- 

purcliaser  who  was  ready  and  wil-  Clave  v.  Paine,  49  N.  Y.  561 :  Tombs 

ling  and  able  to  take  the  land  upon  v.  Alexander,  101  Mass.  255;  Keys  v. 

the  terms  prescribed.     It  developed  Johnson,  68  Pa.   St.  42;  Armstrong 

that  the  land  had  been  sold  by  an-  v.  Wann,  29  Minn.  126;  Hungerford 

other  agent  similarly  employed   by  v.  Hicks,  39  Conn.  259. 

the  plaintiff.     Held,  that  the  plaintiff  *  Wylie  v.  Marine  Bank,  61  N.Y.  415. 

could  recover.  s  Martin  v.  Silliman,  53  N.  Y.  61". 


AGENTS    AND    BROKERS.  243 

broker  intervened  between  the  parties  to  a  negotiation  which 
was  originally  commenced  and  linally  consummated  without 
his  agency,  and  by  his  conversation  with  third  persons  or 
otherwise  contributed  to  its  consummation,  does  not  entitle 
him  to  commissions  when  a  sale  at  the  price  fixed  as  the  con- 
dition of  his  employment  was  not  effected,  and  he  was  not 
prevented  by  his  emplo\'er  from  effecting  a  sale  at  that  price. ^ 

It  has  been  held,  where  the  owner  of  real  estate  agreed  with 
a  broker  that  he  would  pay  him  a  certain  amount  if  he  would 
find  a  purchaser  within  a  specified  time  who  would  pay  a  cer- 
tain price  for  the  estate,  that  if  within  such  time  the  broker 
procured  such  purchaser,  he  was  entitled  to  recover  his  com- 
mission, though  the  owner  sold  the  property  before  the  broker 
found  a  purchaser.^ 

As  a  general  rule,  where  real  estate  is  sold  through  the  in- 
strumentality of  a  broker  employed  by  the  owner,  he  is  enti- 
tled to  his  commission,  although  the  owner  himself  negotiates 
the  sale,  and  even  though  the  purchaser  is  not  introduced  to 
the  owner  by  the  broker,  and  the  latter  is  not  personall}^  ac- 
quainted with  the  purchaser;''  and  in  every  case  where  a  broker 
who  has  been  employed  to  sell  introduces  a  purchaser  to  the 
owner,  and  through  such  introduction  negotiations  are  begun 
and  a  sale  of  the  property  is  finally  effected,  the  broker  is  enti- 
tled to  commissions,  although  in  point  of  fact  the  sale  ma}' 
liave  been  made  by  the  owner.^ 

§  29.  Coutiimed  —  Failure  to  close  within  time  stipulated. 
It  v.-ould  seem  that  if  an  agent  for  the  sale  of  land  is  limited 
as  to  the  time  within  which  to  earn  his  commissions  the  sale 
must  be  effected  within  such  limited  time,  and  that  he  cannot 
recover  otherwise,  although  one  whom  he  introduced  to  the 
owner  afterwards  becomes  the  purchaser  of  the  land.* 

•Briggs  V.  Rowe,  1  Abb.  App.  Doc.  put  it  beyond  his  power  to  complete 

(N.  Y.)  189.  the  contract.  And  see  Vinton  v.  Bald- 

2  Lane  v.  Albright,  49  Ind.  275.    In  win,  95  Ind.  433. 

this  case  the  owner  was  Iield  to  be  ^  Sussdorff  v.  Schmidt,    55   N.  Y. 

liable  for  commissions  because  he  had  319. 

deprived  the  broker  of  the  pov  er  to  '  Jones  v.  Adler,  34  Md.  440;  "Woods 

earn  them,  and  that  in  order  to  claim  v.  Stephens,  46  Mo.  555. 

commissions  the  broker  was  nut  re-  ^  Puitz    v.    AVimer,    34    Kan.    576; 

quired  to  produce  a  purchaser  witiiin  Beauchamp  v.  Iliggins,  20  Mo.  App. 

the  specified  time,  as  the  owner  had  514.     But  see  Williams  v.  Leslie,  111 


2-1:4:  CONTRACT    OF    SALE. 

"Where  the  broker  is  allowed  a  "reasonable  tune"  the  cir- 
cumstances must  furnish  the  grounds  for  determination;^  and 
where  no  time  is  stipulated  for  the  continuance  of  the  contract 
either  party  is  at  liberty  to  terminate  it  at  will,  subject  only 
to  the  ordinary  requirements  of  good  faith.-  AVhere  the  broker 
has  been  allowed  a  reasonable  time  to  procure  a  purchaser  and 
effect  a  sale  and  has  failed  to  do  so,  and  the  principal  in  good 
faith  has  terminated  the  agency  and  sought  other  assistance 
by  means  of  which  a  sale  is  consummated,  the  fact  that  the 
])iircliaser  is  one  whom  the  broker  introduced,  and  that  the  sale 
was  in  some  degree  aided  by  his  previous  unsuccessful  efforts, 
does  not  give  him  a  right  to  commissions.^ 

§  30.  Continued  —  Sale  by  unlicensed  broker.  The  occu- 
pation of  brokerage  has  ever  been  held  to  be  the  subject  of 
regulation  under  the  police  power  of  the  state,  and  license  fees 
imposed  upon  this  class  of  traders  are  regarded  as  a  proper 
exercise  of  the  power.  In  man^^  of  the  decisions,  where  the 
question  as  to  the  right  of  an  unlicensed  broker  to  recover 
commissions  on  sales  made  through  his  instrumentality  has 
arisen,  the  special  law  under  consideration  has  been  the  inter- 
nal revenue  act  of  the  United  States;  but  the  principles  in- 
volved in  such  cases  are  in  a  large  measure  inapplicable  to  state 
laws  and  local  municipal  regulations.  The  fact  that  an  agent 
had  taken  out  no  license  under  the  internal  revenue  law^  of  the 
United  States  was  held  not  to  affect  his  right  to  recover  com- 
pensation. The  sole  object  of  that  law"  was  to  raise  revenue; 
and  the  question  in  such  cases  is  whether  the  statute  was  in- 
tended as  a  protection  or  merely  as  a  fiscal  expedient —  whether 
the  legislature  intended  to  prohibit  the  act  unless  done  by  a 

Incl.  70,  where  an  agency  to  sell  a  troduced  by  him  was  consummated 
tract  of  land  was  limited  to  nine  within  nine  months  or  not. 
months,  but  the  contract  provided  i  Thus,  a  contract  to  sell  in  a  "  short 
that  if  a  customer  should  be  intro-  time  "  was  held  to  be  fulfilled  by  pro- 
duced by  the  agent  during  the  time  curing  a  customer  within  two  weeks, 
to  whom  the  principal  should  sell  Smith  v.  Fairchild,  7  Colo.  510. 
afterwards  the  agent  should  be  en-  Twenty-two  days  was  held  to  fill  the 
titled  to  his  commission.  Held  that,  requirement  that  a  sale  should  bo 
by  the  terms  of  the  contract,  the  made  within  a  "reasonable  time." 
agent  was  entitled  to  compensation,  Lane  v.  Albright,  49  Ind.  275. 
whether  the  sale  to  the  customer  in-  2  Sibbald  v.  Iron  Co.  83  N.  Y.  378. 

3  Sibbald  v.  Iron  Co.  83  N.  Y.  378. 


AGENTS    AND    IJUoKKUS.  2i5 

qualified  person  or  merely  that  the  person  who  did  it  should 
pay  a  license  fee.  If  tiic  latter  the  act  is  not  illegal,'  and  the 
revenue  laws  will  not  airect  iiis  right  to  recover  upon  an  ex- 
press contract  for  lixcd  compensation.-  On  the  other  hand,  if 
the  statute  or  ordinance  is  intended  to  regulate  the  business  of 
brokerage,  a  contrjir}*  rule  would  aii])ly  ;  and  unless  the  bi'oker, 
in  the  event  of  such  a  regulation,  has  complied  with  the  law 
and  been  duly  licensed  to  pui-sue  such  a  calling  he  cannot  re- 
cover commissions  by  a  legal  action.^ 

§  31.  Coiitiuiied  —  Agent  as  purchaser.  The  general  sub- 
ject of  purchases  by  agents  has  been  reviewed  in  a  foregoing 
pai'agraj)!!,  where  it  was  shown  that  an  agent  to  whom  prop- 
erty has  been  intrusted  for  sale  cannot  himself  become  the  pur- 
chaser except  under  peculiar  conditions.  The  only  inquiry 
pertinent  at  this  time  is  with  respect  to  the  right  of  an  agent  to 
ask  and  receive  commissions  where,  instead  of  finding  a  third 
party  wdio  is  willing  to  or  does  purchase,  he  himself  becomes 
the  purchaser.  There  would  seem  to  be  no  good  reason,  either 
in  law  or  morals,  for  a  denial  to  him  of  this  privilege.  The 
agreement  of  the  vendor  is  to  pay  commissions  when  the  agent 
shall  have  procured  a  purchaser  able  and  willing  to  take  the 
property  at  the  ]irice  proposed,  and  usually  it  is  immaterial  to 
the  vendor  who  the  purchaser  is.  And  even  if  the  agent  is  to 
find  a  purchaser  who  will  pay  for  it  the  best  price  attainable, 
if  the  vendor  agrees  upon  a  price  at  which  he  is  willing  to  sell, 
and  there  is  no  fraud,  concealment  or  misrepresentation  on  the 
part  of  the  agent,  he  should  not  be  distinguishable,  so  far  as 
respects  the  payment  of  commissions,  if  instead  of  presenting 
a  third  party  he  oilers  himself. 

The  question  does  not  seem  to  have  been  raised  to  any  ex- 
tent in  the  reported  cases.  A  diligent  search  has  failed  to 
produce  anything  that  militates  against  these  views;  while  it 
does  appear  that,  so  far  as  they  have  been  presented,  they 
have  received  the  sanction  of  the  courts.  Thus,  it  has  been 
held  that  a  broker  who  engages  for  a  commission  to  find  a 

>  Ruckman  v.  BeiKholz,  37  N.  J.  L.  '  Johnson  v.  Hulings,  103  Pa.  St. 
437.  498;  McCouucll  v.  Kitchens,  20  S.  C. 

2  Woodward  v.  Stearns,  10  Abb.Pr.    430. 
(N.  Y.)  N.  S.  395;  Pope  v.  Beals.  108 
Mass.  561. 


240  CONTKACT   OF   SALE. 

purchaser  of  land  at  such  price  as  may  be  agreed  upon  between 
such  purchaser  and  the  vendor,  and  then  becomes  himself  the 
purchaser,  in  whole  or  in  part,  the  vendor  accepting  him  as 
such,  may  recover  the  commission  upon  clear  proof  that  such 
was  the  understanding  upon  the  part  of  the  vendor  at  the  time 
of  the  sale.' 

§  32.  Double  agency.  The  undertaking  as  well  as  the  duty 
of  an  agent  is  to  promote,  by  all  lawful  measures,  the  interests 
of  his  principal.  Hence,  it  becomes  the  duty  of  an  agent  for 
the  vendor  to  sell  the  property  at  the  highest  attainable  price; 
of  the  agent  for  the  purchaser,  to  buy  it  for  the  lowest.  These 
duties  are  so  utterly  irreconcilable  and  conflicting  that  they 
cannot  be  performed  by  the  same  person  without  great  danger 
that  the  rights  of  one  principal  will  be  sacrificed  to  promote 
the  interests  of  the  other,  or  that  neither  of  them  will  enjoy 
the  benefit  of  a  discreet  and  faithful  exercise  of  the  trust  re- 
posed in  the  agent.^  For  this  reason  it  has  invariably  been 
held  that  an  agent  cannot  recover  for  services  rendered  while 
holding  such  entirely  incompatible  relations,^  unless,  indeed,  it 
clearly  appears  that  both  vendor  and  vendee  had  full  knowl- 
edge of  all  the  circumstances  and  assented  to  the  double  em- 
ployment.*  The  justness  of  the  rule  is  apparent,  and  its  sound- 
ness has  never  been  questioned. 

But  while  the  rule  may  be  considered  as  established  beyond 
controversy,  it  has  an  exception  equally  well  established  that 
an  agent  may  be  employed  by  and  recover  from  both  par- 
ties as  a  mere  "  middle-man  "  to  bring  them  together.^     When 

1  Grant  V.  Hardy,  33  Wis.  668.  And  Collan,  40  Mich.  375;    Lloyd  v.  Col- 

the  fact  that,  in  effecting  the  sale,  the  ston,  5  Bush  (Ky.),  587. 

broker  has  acted  in  fraud  of  his  co-  <Bell  v.  McConnell,  87  Ohio  St.  396; 

purchaser,  will  not  affect  his  right  Rice  v.  Wood,  113  Mass.  133;  Barry 

to  the    commission    as  against   the  v,  Schmidt,  57  Wis.   172;    and    see 

vendor.     Ibid.  Vinton  v.  Baldwin,  88  Ind.  104 ;  Rowe 

2Farnsworth  v.  Hemmer,  1   Allen  v.  Stevens,  53  N.  Y.  621.     A  custom 

(Mass.),  494.  among  brokers  that  they  are  entitled 

3  Walker  v.  Osgood,  98  Mass.  348 ;  to  a  commission  from  each  party  is 

Stewart    v.   Mather,    32    Wis.    344 ;  invalid  as  against  public  policy,  and 

Raisin  v.  Clark,  41   Md.  158;    Boll-  cannot  be  sustained  by  the  courts, 

man  v.  Loomis,  41  Conn.  581;  Ever-  Raisin  v.  Clark,  41  Md.  158. 

hart  V.  Searle,  71  Pa.  St.  256;  Lynch  s  Stewart  v.  Mather,  32  Wis.  344; 

V.  Fallon,  11   R.  L  311;  Scribner  v.  Rupp  v.  Sampson,  IG  Gray  (Mass.), 

398 ;  Rowe  v.  Stevens,  53  N.  Y.  621. 


AGENTS    AND    HROKKKH.  247 

this  has  been  accomplished  his  duty  is  performed,  and  to  his 
case  the  poHcy  of  the  law  which  excludes  double  compensa- 
tion has  been  considered  inapplicable. 

The  rule  and  the  exception  are  well  established  both  by 
reason  and  authority.  When  an  agent  is  employed  by  one 
party  to  sell  and  by  the  other  to  purchase,  and  is  vested  with 
any  discretion  or  judgment  in  the  negotiation,  his  duties  are 
in  conflict  and  in  respect  to  adverse  interests,  and  he  cannot 
fairly  serve  both  parties.  This  adverse  interest  of  the  parties, 
and  this  conflicting  and  inconsistent  duty  of  the  agent,  forms 
the  basis  of  the  rule;  and  the  exception  is  founded  upon  the 
absence  of  this  adverse  interest  of  the  parties  and  upon  the 
concurrence  of  the  duty  of  the  agent  toward  both  parties  alike; 
as  where  the  price  is  fixed  by  the  vendor,  and  merely  accepted 
by  the  purchaser  through  the  procurement  of  the  agent,  or 
where  no  terms  are  fixed  by  the  vendor  or  authorized  by  him 
to  be  fixed  by  the  agent,  and  the  agent  acts  as  the  mere  middle- 
man tp  bring  the  parties  together  for  a  negotiation  and  con- 
tract to  be  made  by  themselves.' 

Affain,  there  is  nothing  inconsistent  with  the  rule  as  stated  in 
permitting  two  persons  who  desire  to  negotiate  an  exchange  or 
a  bargain  and  sale  of  property  to  agree  to  delegate  to  a  third 
person  in  whose  judgment  and  discretion  they  mutually  repose 
confidence  the  duty  of  fixing  terms  or  arranging  for  a  price. 
Such  agcint  may  not,  indeed,  be  able  to  serve  each  of  his  princi- 
pals with  all  his  skill  and  energy;  nor  obtain  for  his  vendor 
principal  the  highest  price  which  might  be  obtained,  or  for 
the  purchaser  the  lowesu  price  at  which  the  land  might  be 
bought;  yet  he  may  still  be  able  to  render  to  each  a  service 
entirely  free  from  falsehood  and  fraud,  and  in  which  his  best 
judgment  and  soundest  discretion  are  fully  exercised.  In  such 
case  such  service  is  all  that  either  of  his  principals  contracted 
for;  and  when  this  is  done,  and  free  assent  given  by  each  prin- 
cipal to  the  double  relation,  the  right  of  the  agent  to  compen- 
sation cannot  be  denied  on  any  just  principle  of  morals  or  of 
law." 

H)rton   V.    Scofield,    61   Wis.    382;    v.    Sampson.    16  Gray  (Mass.).    398; 
Barry  v.  Schmidt,  57  Wis.  172;  Bell   Walker  v.  Osgood.  98  Mjii;s.  348. 
V.  McConnell,  37  Ohio  St.  396 ;  Rupp       -  Bell  v.  McCounell,    37  Ohio  St. 


248  OONTKACT    OF    SALE. 

Within  the  foregoing  exceptions  a  recover}^  may  be  had  by 
an  agent  from  either  or  both  of  his  principals,  he  having  acted 
with  their  full  knowledge  and  consent;  3^et  the  principle  holds 
equally  good  in  law  as  in  morals  that  no  servant  can  serve  two 
masters,  and  any  attempt  so  to  do  without  the  full  knowledge 
and  free  consent  of  both  parties  is  not  to  be  tolerated.  Unless 
the  principal  contracts  for  less,  the  agent  is  bound  to  serve 
him  with  all  his  skill,  judgment  and  discretion;  and  this  duty 
he  cannot  divide  and  give  part  to  another.  By  engaging  with 
a  second  he  forfeits  his  right  to  compensation  from  the  one 
who  first  employed  him,  and  for  the  same  reason  he  cannot 
recover  from  the  second  employer  who  is  ignorant  of  the  first 
engagement.  Nor  will  the  fact  that  the  second  employer  has 
knowledge  of  the  first  engagement  materially  alter  the  case; 
for  then  both  he  and  the  agent  are  guilty  of  the  wrong  com- 
mitted against  the  first  employer,  and  the  law  will  not  enforce 
an  executory  contract  entered  into  in  violation  of  his  rights 
Neither  is  it  any  answer  to  say  that  the  second  employer,  hav- 
ing knowledge  of  the  first  employment,  should  be  held  liable 
on  his  promise  because  he  could  not  be  defrauded  by  the  trans- 
action ;  for  the  contract  itself  is  void  as  against  public  policy 
and  good  morals,  and  both  parties  thereto  being  in  pari  delicto 
the  law  will  leave  them  as  it  finds  them.^ 

§  33.  The  measure  of  compensation.  Usually  where  par- 
ties stipulate  for  the  services  of  an  agent  or  broker  in  the  pur- 
chase or  sale  of  real  estate,  the  compensation  which  is  to  be 
paid  for  such  service  is  also  fixed  by  mutual  agreement;  and, 
in  the  absence  of  any  other  controlling  circumstances,  such 
agreement  will  form  the  basis  of  the  amount  which  the  agent 
shall  be  entitled  to  receive.  Where  no  such  arrangement  has 
been  made,  a  well-established  and  uniform  custom  or  usage 
may  be  relied  upon  as  a  proper  criterion  for  fixing  the  value  ;^ 

396;   and  see  Alexander   v.  Univer-  of  law,  must  be  reasonable,  long-es- 

sity,  57  Ind.  466;  Joslin  v.  Cowee,  56  tablished  and  so  well  known  astoac- 

N.  Y.  626 ;  Fitzsimmons  v.  S.  W.  Ex.  quire  the  force  of  law,  uncontradict- 

Ck>.  40  Ga.  330 ;  Adams   Mining  Co.  ory  and  distinct.     The  rule  applied 

V.  Senter,  26  Mich.  73.  in  a  case  where  the  evidence  was  held 

1 1  Bell  V.  McConnell,  37  Ohio  St.  not  sufficient  to  support  a  custom  to 

396.  pay  brokers'  commissions,  where  the 

2  A  custom,  to  vary  a  settled  rule  sale  was  effected  through  the  instru- 


agp:xts  and  brokeks. 


249 


and  in  the  absence  of  such  uniform  custom  or  usage,  the  meas- 
ure of  the  broker's  comjicnsation  sliould  bo  the  value  of  the 
services  rendered,  to  be  ascertained  as  in  other  cases  of  em- 
ployment.' 

§  .'{i.  Sub-agents.  The  .general  rule  of  law  is  that  a  dele- 
gated power  cannot  bo  (lelegated;  and  if  an  agent  in  the  con- 
duct of  his  agency  cm))loys  a  sub-agent  without  authority  to 
bind  his  principal,  expressly  given  or  fairly  presumptive  from 
the  particular  circumstances  or  the  usage  of  the  business,  the 
sub-agent  must  look  to  his  immediate  employer  for  his  pay, 
and  has  no  claim  for  compensation  against  the  agent's  princi- 
pal, between  whom  and  the  sub-agent  no  privity  exists.^ 


mentality  of  anotlier.  Pratt  v.  Bank, 
12  Phil.  (Pa.)  378.  Usage  is  not  read- 
ily adopted  by  the  courts ;  therefore 
the  proof  of  usage  must  be  clear  and 
explicit,  and  the  usage  so  well  estab- 
lished, uniform  and  notorious  that 
parties  may  be  presumed  to  have 
known  it,  and  contracted  in  refer- 
ence to  it.  Hall  V.  Storrs,  7  Wis.  253. 
It  being  the  established  usage  of  land 
agents  in  Milwaukee  to  charge  and 
receive  three  per  cent,  of  the  amount 
of  the  purchase  money  on  sales  ef- 
fected through  their  agency,  Jteld, 
in  a  suit  brought  by  P.,  a  land  agent 
there,  against  K.  for  the  three  per 
cent,  to  which  he  claimed  to  be  enti- 
tled according  to  such  usage,  where 
K.  had  employed  him  to  sell  certain 
lands  for  him  at  a  certain  price,  and 
P.  found  a  person  ready  and  willing 
to  purchase  the  lands  on  K.'s  terms, 
but  K.   refused  to  sell,  that  P.  was 


not  entitled  to  recover  on  such  im- 
plied contract  until  the  consumma- 
tion of  the  sale,  and  it  made  no 
difference  whether  the  sale  was  pre- 
vented by  K.  himself  or  the  want  of 
a  purchaser;  whetlier  P.  could  re- 
cover on  a  quantum  meruit,  quere. 
Power  V.  Kane,  5  Wis.  2G.3. 

1  Potts  V.  Aechternacht,  93  Pa.  St. 
138. 

2  A  special  agent  acting  simply  by 
virtue  of  a  power  of  attorney  to  sell 
and  convey  certain  real  estate  cannot 
employ  a  broker  to  procure  a  pur- 
chaser and  negotiate  a  sale,  so  as  to 
raise  a  privitj'  between  his  principal 
and  the  broker,  and  give  the  latter  a 
right  of  action  for  his  compensation 
directly  against  his  principal.  Jen- 
kins V.  Funk,  33  Fed.  Rep.  915 ;  and 
see  Hand  v.  Conger,  71  Wis.  292; 
Corbett  v.  Schumacker,  83  111.  4U3. 


250 


CONTKACT   OF   SALE. 


CHAPTER  YIII. 


SALES  BY  AUCTION. 


^  1.  Generally. 
3.  The  sale. 

3.  Sales  without  reserve. 

4.  Sale  hy  plat. 

5.  Auctioneer's  relation  to  the  par- 

ties. 

6.  Auctioneer  cannot  delegate  au- 

thority. 

7.  Withdrawing;  bid. 


§  8.  Refusing  bid. 
9.  Puffers  and  by-bidders. 

10.  Vendor  as  bidder. 

11.  Combinations  among  bidders. 

12.  Auctioneer's  memorandum. 

13.  Auctioneer's  receipt    as    mem- 

orandum. 

14.  The  deposit. 

15.  Resale. 


§  1 .  Generally.  Eeal  estate  is  very  often  sold  at  auction, 
not  only  in  pursuance  of  the  judgment  or  decree  of  some  legal 
tribunal  as  the  result  of  some  proceeding  theretofore  had,  but 
also  by  the  mere  volition  of  the  vendor.  This  is  a  method 
frequently  resorted  to  as  a  means  of  inaugurating  settlements 
in  sparsely-populated  districts,  opening  new  subdivisions  ad- 
jacent to  cities,  or  for  the  more  speedy  disposal  of  property  in 
any  locality,  or  with  a  view  to  an  increased  price  by  reason  of 
competitive  bidding. 

In  all  essential  features  an  auction  sale  differs  in  no  respect 
from  a  sale  made  through  private  negotiation,  and  consists 
only  of  an  invitation  for  proposals,  an  offer  and  an  acceptance. 
The  same  rules  that  apply  in  the  one  case  are  of  equal  force  in 
the  other;  the  only  difference  lies  in  the  method,  and  this  has 
called  forth  a  few  rules  which  it  is  proposed  to  briefly  discuss 
in  this  chapter. 

§  2.  The  sale.  A  sale  by  auction  may  be  made  on  the 
premises  or  at  any  other  place  designated  in  the  notice  thereof, 
and  must  be  conducted  fairly  and  honestly.  The  terms  and 
conditions  must  be  made  known  before  the  biddings  have  com- 
menced, and  in  ordinary  cases  the  auctioneer  will  have  the  right 
to  prescribe  the  rales  of  bidding  and  the  terms  of  sale;  pro- 
vided he  does  not  contravene  the  written  particulars  and  con- 
ditions, if  there  are  any.  When  the  biddings  have  once  com- 
menced they  should  be  continued  as  long  as  any  person  will 
increase  upon  the  previous  bidding. 


8ALKS    BY    AUCTION.  251 

§  3.  Sales  "  without  reserve."  It  is  not  an  uncommon 
practice  to  announce  a  sale  ''  without  reserve;"  and  while  this 
would  probably  be  implied  by  law  where  no  reservation  was 
made  by  the  vendor,  yet  when  so  stated  it  has  the  eflect  of 
creating  an  express  contract  between  the  vendor  and  the  high- 
est bona  fide  bidder  that  the  sale  shall  be  so  conducted.'  If 
under  these  circumstances  a  bid  is  made  by  or  on  behalf  of 
the  vendor,  he  thereby  becomes  responsible  in  damages  to  the 
hiffhest  bidder  for  a  breach  of  the  conditions  of  sale. 

§  4.  Sale  by  plat.  "Where,  at  an  auction  sale  of  real  prop- 
erty, the  lots  are  delineated  upon  a  ])lan  or  plat  which  is  ex- 
hibited to  bidders  and  to  which  bidders  are  referred,  such 
reference  is  the  assertion  of  a  positive  fact,  which,  if  material, 
enters  into  the  consideration,  and  if  false  is  a  ground  of  relief 
where  its  falsity  was  unknown  to  the  purchaser,  and  he  has 
taken  no  covenant  to  protect  himself.  The  plat  is  an  evidence 
of  the  existence  and  location  of  streets,  etc.,  and  if  referred 
to  in  the  conveyance  becomes  a  material  and  essential  part 
thereof.  The  representation  of  streets,  alleys,  etc.,  upon  a 
plat  is  a  positive  affirmation  that  such  exist,  and  upon  which 
purchasers  have  a  right  to  rely.  The  untruth  of  such  repre- 
sentations cannot  in  many  cases  be  readily  discovered,  even 
by  the  exercise  of  ordinary  diligence;  and  as  he  who  sells  prop- 
erty by  a  description  given  by  himself  is  bound  to  make  that 
description  good,  so  a  vendor  who  at  a  sale  by  public  auction 
misleads  and  injures  the  purchaser,  even  though  there  is  an  ab- 
sence of  wilful  fraud  on  his  part,  must  nevertheless  remain 
liable  for  any  injury  caused  by  his  incorrect  represeutation.- 

•The  term   "without  reserve"  is  It  exhibited  the  street,  witli  streets 

uuderstood  to  exclude  all   interfer-  on  his  own  plat  opening  into  it;  but 

ence  by  the  vendor  or  those  coming  the  seller  gave  no  information  that 

in  under  him  with  tlie  right  of  the  the  first-named    street   was  on    his 

public  to  have  the  property  at  the  neighbor's  land.     He  sold  lots  at  auc- 

highest  bidding.  tion  according  to  the  plat  which  was 

*  As  where  a  master  and  commis-  exliibited  on  the  day  of  sale.  The 
sioncrs  in  partition  divided  a  dece-  plat  of  the  commissioners  was  after- 
dent's  land  and  laid  out  a  street  ward  set  aside  and  the  street  vacated, 
bounding  on  the  line  of  an  adjoining  Held,  that  the  vendor  w;is  liable  for 
land-holder.  Afterwards,  but  before  damages  to  a  vendee  of  lots  for  dimi- 
the  partition  was  put  on  record  or  the  nution  in  the  value  thereof  caused 
street  opened,  the  latter  laid  out  a  by  the  non-existence  of  the  vacated 
town  plat,  which  was  lithographed,  street.    McCall  v.  Davis,  56  Pa.  St.  481. 


252  CONTRACT   OF    SALE. 

§  5.  Auctioneer's  relation  to  the  parties.  An  auctioneer 
is  essentially  an  agent,  and  his  contract  is  that  of  agency. 
Until  the  fall  of  the  hammer  he  is  exclusively  the  agent  of  the 
vendor,  but  after  this  he  becomes  the  agent  of  the  purchaser 
as  well,  and  his  memorandum  of  the  transaction  binds  both 
parties.^  The  position  of  an  auctioneer  differs  in  some  re- 
spects, however,  from  that  of  an  ordinary  agent;  and  where 
the  subject  of  the  sale  is  land  it  has  been  said  that,  by  reason 
of  his  right  to  bring  an  action  and  of  his  liability  to  account 
for  the  deposit,  he  can  be  made  a  co-plaintiff  with  the  vendor 
in  an  action  for  specific  performance,  and  he  is  not  infre- 
quently made  a  co-defendant  in  such  an  action.-  He  may  sue 
in  his  own  name  upon  evidences  of  debt  that  may  have  been 
given  to  him  in  payment  of  the  deposit;^  and,  as  a  necessary 
incident  of  his  power  to  sell,  may  receive  and  receipt  for  so 
much  of  the  purchase  money  as  is  paid  down  at  the  time  of 
sale.* 

As  between  himself  and  the  vendor  his  agency  is  general, 
and  whatever  acts  are  usually  performed  by  auctioneers  or 
whatever  rights  are  ordinarilj'  exercised  by  them  are  deemed 
incidents  to  his  authorit}^ ;  and,  in  like  manner,  whatever  du- 
ties ordinarily  attach  to  the  office  are  deemed  imposed  upon 
him.  He  is  subject,  nevertheless,  to  the  special  instructions 
of  his  principal;  and  his  rights  and  duties  under  his  general 
agency  are  further  subject,  as  regards  third  persons,  to  their 
having  notice  of  such  special  instructions.  After  the  fall  of 
the  hammer  he  becomes  the  mutual  agent  of  both  vendor  and 
vendee,  and  his  action  is  competent  to  bind  both  parties  to  the 
sale.^ 

1  White  V.  Crew,  16  Ga.  416;  Mor-  have  ever  been  taken  and  accepted 
ton   V,   Dean,    13    Met.    (Mass.)  397;  as  true  with  regard  to  sales  of  chat- 
Harvey    V.     Stevens,    43    Vt.    653 ;  tels  there  has  been  some  diversity  of 
O'Donnell   v.  Leenian,  43  Me.    158;  opinion  in  respect  to  sales  of  realty, 
Doty  V.  Wilder,   15  111.  410;  Gill  v.  and  in  some  instances  contrary  con- 
Hewitt,  7  Bush  (Ky.),  13;  Walker  v.  elusions    have    been    reached.     The 
Herring,  21  Gratt.  (Va.)  6^8.  later  cases,  however,  adopt  and  de- 
2 See  Bateman  on  Auctions,  211.  clare  the  doctrine  of  the  text;  and 
3  Thompson  v.  Kelh',  101  Mass.  291.  tliere  does  not  seem  to  be  any  good 
^Goodale    v.    Wheeler,    11   N.    H,  reason  why  the  auctioneer  shall  be 
424;  Adams  v.    Humphrey,   54  Ga.  viewed  as  the  agent  of  the  purchaser 
496;  Rodgers  v,  Bass,  46  Tex.  505.  in  the  sale  of  goods  which  does  not 
5  While  the  statements  of  the  text  equally  apply  to  the  sale  of  lands. 


SALES    BY    AUCTION.  253 

The  foregoing  remarks  apply,  howevei-,  only  where  the  auc- 
tioneer would  be  a  compelcnt  agent  in  any  other  species  of 
land  sale.  His  agency  as  an  auctioneer  is  not  essentially  dif- 
ferent from  agency  in  general,  and  is  governed  practically  by 
the  same  rules.  Hence  a  vendor  acting  as  his  own  auctioneer, 
being  a  })arty  to  the  sale  and  a  necessary  partv  to  a  suit  to  re- 
cover the  purchase  money,  is  incompetent  to  act  in  the  trans- 
action as  the  agent  of  the  buyer.'  And  it  is  immaterial,  so  far 
as  affects  the  operation  of  this  rule,  whether  the  auctioneer 
has  himself  any  beneficial  interest  in  the  contract  or  simply 
stands  in  a  fiduciary  relation  to  a  third  person,  so  long  as  he 
is,  in  legal  point  of  view,  the  real  party  to  and  the  proper  one 
to  sue  upon  the  con  tract. - 

§  G.  Auctioneer  cannot  delegate  authority.  Where  an  auc- 
tioneer is  emplo^'cd  to  sell  he  must  himself  conduct  the  sale, 
and  cannot,  without  special  authority,  delegate  his  powers  to 
another.'  AVith  regard  to  merely  subsidiary  matters  he  may 
employ  others  to  assist  him,  as  to  make  the  outcry  or  ply  the 
hammer;^  but  everything  directly  connected  with  the  sale  must 
be  conducted  under  his  immediate  supervision."' 

§  7.  "Withdrawing  bid.  Mutuality  is  essential  to  the  valid- 
ity of  all  contracts,  and  so  particularly  so  to  such  as  are  not 
under  seal  that  they  cannot  be  said  to  exist  without  it.  A  bid 
at  auction,  before  the  hammer  falls,  is  like  an  offer  before  ac- 
ceptance; and  a  bidder  has  a  right  to  withdraw  his  offer  at  any 
time  before  the  property  is  struck  off  to  him.  In  such  case 
there  is  no  contract;  and  such  bidder  cannot,  in  any  sense,  be 
regarded  as  a  purchaser."  The  brief  interval  between  the  bid 
and  its  acceptance,  it  is  said,  is  the  reasonable  time  which  the 
law  allows  for  inquiiy,  consideration,  correction  of  mistakes 
and  retraction.^ 

§  8.  Refusing  bid.  An  auction  being  an  open  sale,  the  auc- 
tioneer cannot  in  general  refuse  to  accept  a  bid.  though  it 

'Tall  V.  David,  45  Mo.  -144.  'Stone  v.  State,  12  Mo  400;  Com- 

2  See  Browne,  Stat.  Frauds,  ^  3G7;  3  nioii wealth     v.     Hamden,     19    Pick. 

Par.  Cont.  11.     But  these  remarks  do  (Masri.)  482. 

not  apply  to  a  sheriff  or  like  oliioer  '•Poree  v.  Bonneval,  6  La.  Ann.  386. 

acting  simply  in  the  execution  of  a  ^  Chambers  v.  Jones,  72  111.  275. 

power  of  sale  and  not  in  strictness  as  "^  1  Addison,  Cont.  18. 

a  trustee.  '  Fisher  v.  Seltzer,  23  Pa.  St.  308. 


254  CONTRACT    OF    SALE. 

seems  that  ho  is  not  obliged  to  take  the  bid  of  a  person  of 
known  irresponsibility,^  and  may  refuse  such  bid  when  its  ac- 
ceptance would  have  the  effect  of  frustrating  the  very  purpose 
for  which  the  sale  was  designed,  notwithstanding  such  bid 
may  be  nominally  the  highest.^  So,  also,  he  may  refuse  the 
bid  of  a  minor  or  other  person  legallj'  incapable  of  making 
an  enforceable  contract.' 

If  the  sale  is  without  reserve,  he  should  not  accept  a  bid 
from  the  vendor  or  any  one  acting  in  his  behalf. 

§  9.  Puffers  and  by-bidders.  A  puffer,  in  the  strictest  mean- 
ing of  the  word,  is  a  person  who,  without  any  intention  of 
purchasing,  is  emploj'ed  by  the  vendor  at  an  auction  sale  to 
raise  the  price  by  fictitious  bids,  thereby  increasing  competi- 
tion among  the  bidders,  while  he  himself  is  secured  from  risk 
by  a  secret  understanding  with  the  vendor  that  he  shall  not 
be  bound  b}'-  his  bids.*  The  legal  eflFect  of  such  employment 
upon  the  sale  was  for  many  years  a  disputed  question  in  the 
courts  of  England,  the  common-law  and  chancery  courts  hav- 
ino-  at  different  times  formulated  rules  variant  and  even  con- 

O 

tradictory.'^  As  might  be  expected,  the  courts  of  the  United 
States  have  to  a  considerable  extent  rendered  conflicting  de- 
cisions on  the  subject,  some  following  the  rules  of  the  English 
common-law  courts,  and  others  those  promulgated  by  the 
courts  of  chancery ;  but  the  weight  of  authority  now  is  and  at 
all  times  has  been  to  condemn  the  practice  as  inconsistent 
with  common  honesty  and  fair  dealing.^  It  is  fundamental 
that  the  basis  of  all  dealing  should  be  in  good  faith;  and  more 

iDen  V.  Zellers,  7  N.   J.   L.  153;  rifice.    The  doctrines  at  common  law 

Hobbs  V.  Beavers,  2  Ind.  143.  and  in  equity   have   recently  (1867) 

2  See  Munlock's  Case,  2  Bland,  Cli.  been  assimilated  in  England  (at  least 
(Md.)  46.  so  far  as  regards  auction  sales  of  real 

3  Kinney  v.  Showdy,  1  Hill  (N.  Y.),  estate)  by  statute,  making  the  rule  at 
544.  common    law   likewise  the  rule  in 

i  Peck  V.  List.  23  W.  Va.  338.  equity. 

^The  law  courts  held  that  by-bid-       «Pennock's  Appeal,  14  Pa.  St.  449; 

ding  or  puffing  was  a  fraud,  and  that  Bank  of  Metropolis  v.  Sprague,  20  N. 

any  highest  bidder  who  had  been  de-  J.  Eq.  159 ;  Reynolds   v.  Dechaums, 

ceived  by  it  could  avoid  his  contract  24  Tex.  174 ;  Peck  v.  List,  23  W.  Va. 

or  refuse  to  carry  it  out;  whereas  338;  Curtis  v.    Aspinwall,  114  Mass. 

the   equity  courts  were  disposed  to  187;  Towle  v.  Levitt,  23  N.  H.  360; 

countenance  it  so  long  as  it  was  em-  Veazie   v.  Williams,  8  How.  (U.  S.) 

ployed  defensively  to  prevent  a  sac-  134. 


SALES    BY    AUCTION.  255 

especially  is  this  true  when  the  public  are  brought  together 
upon  a  confidence  that  the  article  set  up  for  sale  is  to  be  dis- 
posed of  to  the  liighest  bidder,  which  could  never  bo  the  case 
if  the  owner  might  privatel}'  and  secretly  enhance  the  price 
by  a  j)erson  employed  for  the  purpose.  The  offer  of  property 
at  auction  without  reserve  is  an  implied  guaranty  that  it  is 
to  bo  sold  to  the  highest  bidder;  and  each  bidder  has  the  right 
to  assume  that  all  previous  bids  are  genuine.  The  seller  in 
substance  so  assures  him,  and  the  secret  employment  by  the 
seller  of  an  agent  to  make  fictitious  bids  is  equivalent  to  a 
false  representation  by  him  as  to  a  matter  in  which  he  is 
bound  to  speak  the  truth  and  act  in  good  faith.'  Such  an  act, 
therefore,  is  a  positive  fraud  upon  the  purchaser,  and  should 
be,  as  it  is,  sufficient  in  itself  to  vitiate  the  sale,"  unless  the 
purchaser  with  knowledge  of  the  fact  has  acted  upon  it,  so  as 
to  deprive  himself  of  the  right  to  complain.' 

Ordinarily  by-bidders  are  employed  by  the  owner  of  the 
property  to  be  sold,  and  when  such  is  the  case  they  are  puffers 
in  the  strictest  sense  of  the  word ;  but  it  is  unimportant  whether 
the  by-bidder  is  employed  by  the  owner  of  the  land  or  by 
some  one  else  having  a  pecuniary  interest  in  the  sale,  and  who 
can  make  good  his  assurance  to  the  by -bidder  that  he  shall 
not  bo  held  responsible  for  his  bid  if  it  happen  to  be  the 
highest  made.  The  real  essence  of  the  fraud  is  not  that  the 
owner  is  bidding  for  the  property,  but  consists  in  the  fact  that 
a  person  pretending  to  be  a  hona  fide  bidder  deceives  honest 
bidders,  raises  the  price  of  the  property  by  fictitious  bids,  in- 
creasing competition,  while  he  himself  has  good  reason  to  be- 
lieve and  does  believe  that  he  is  secure  from  any  risk  of 
being  held  personally  liable  for  his  offers;  and  it  is  immaterial 
from  whom  he  derives  this  assurance  of  immunity  provided 
the  party  giving  the  same  has  the  power  to  make  it  gooil.^ 

There  are  American  cases  which  seem  to  lay  down  the  rule 
that  the  owner  may  protect  himself  against  a  sacrifice  of  the 

1  Curtis  V.  Aspiinvall,  114  Mass.  1S7.  'Peck  v.  List,  23  AV.  Va.  338;  Pen- 
2Tovvle  V.  Leavitt,  23  N.  H.  3G0;  nock's  Appeal,  U  Pa.  St.  449;  Back- 
Stains  v.  Shore,  16  Pa.  St.  200 ;  Bank  enstoss  v.  Stabler,  33  Pa.  St.  251; 
of  Metropolis  v.  Spra^ne,  20  N.  J.  Lathaua  v.  Morrow,  6  B.  Mon.  (Ky.) 
Eq.  159;  Bayham  v.  Boch,  13  La.  C30. 
Ann.  287;  Darst  v.  Thomas,  87  111.  222.  ■•  Peck  v.  List,  23  \V.  Va.  338. 


200  CONTKACT   OF   SALE. 

property  by  "  bidding  in"  the  same;  that  persons  employed 
by  liiui  for  this  purpose  are  not  to  be  classed  as  puffers  where 
the  ])i'ice  is  not  enhanced  beyond  a  fair  value/  and  that  such 
em[)Ioymcnt,  if  made  in  good  faith,  will  not  vitiate  the  salc;^ 
but  it  is  diilicult  to  reconcile  the  reasoning  or  the  result  of 
such  cases  with  the  commonl3'-accepted  rules  first  stated,  or 
to  understand  how  the  element  of  good  faith  can  be  made  to 
apply,  unless  the  owner  has  publicly  reserved  to  himself  the 
exercise  of  such  right. 

§  10.  Veiulor  as  bidder.  If  the  owner's  employment  of 
puffers  who  bid  at  an  auction  sale  of  his  property  avoids  the 
sale,  and  that  such  is  the  fact  may  now  be  considered  the 
settled  doctrine,  it  follows  from  the  same  reasons  that  the 
owner  has  no  right  to  bid  himself  unless  he  publicly  reserves 
such  right.  It  is  true  that  the  spectacle  of  a  vendor  openly 
appearing  as  a  bidder  at  a  sale  of  his  own  property  is  a  matter 
of  most  infrequent  occurrence,  and  the  practice  as  a  rule  is 
never  publicly  avowed.  Yet  there  are  many  indirect  ways  in 
which  it  may  be  and  is  accomplished. 

Undoubtedly  the  vendor  may  bid,  by  himself  or  his  agent, 
to  the  extent  to  which  he  has  expressly  reserved  the  right  so 
to  do;  but  if  the  property  is  put  up  with  a  right  of  bidding 
once  reserved  to  the  vendor, that  right  is  exercised  if  the  auc- 
tioneer with  the  vendor's  authority  start  the  property  at  a  cer- 
tain sum;  and  the  purchaser  may  avoid  the  contract  if  the 
auctioneer  make  or  accept  a  further  bidding  for  the  vendor.' 

§  11.  Conil)iiiatioiis  among  bidders.  It  is  illegal  for  per- 
sons intending  to  purchase  at  auction  sales  to  combine  and 

1  Davis  V.  Petway,  3  Head  (Tenn.),  the  progress  of  the  sale,  when  tlie 
G67;  Reynolds  v.  Dechaums,  24  Tex,  biddings  for  any  particular  tract  were 
174;  Leev.  Lee,  19  Mo.  420;  Walsh  v.  below  the  estimated  value,  the  per- 
Barton,  24  Ohio  St.  28;  and  see  Phip-  son  employed  to  conduct  the  sale 
pen  V.  Stickney,  3  Me.  387;  Latham  would  request  some  one  of  tlie  by- 
V.  Morrow,  6  B.  Mon.  (Ky.)  630;  Pen-  slanders  to  bid  for  the  same,  and  in 
nock's  Appeal,  14  Pa.  St.  446.  no  instance  exceeding  the  minimum 

2  Davis  V.  Petway,  3  Head  (Tenn.),  value  previously  placed  on  the  same. 
667.  In  this  case  executors  employed  Upon  tiiese  f.-icts  the  court  refused  to 
a  person  of  experience  to  assist  them  grant  the  vendee  any  relief  against 
in  the  selling  of  lands;  the  property  tlie  sale.  And  see  Latham  v.  Mor- 
was  divided  and  an  estimate  of  value  row,  6  B.  Mon.  (Ky.)  630. 

placed  upon  the  several  lots.    During       "  Bateraan  on  Auctions,  122. 


SALES   BY    AUCTION.  257 

enter  into  agreements  not  to  bid  against  each  other.  Tlie 
polic}'  of  the  law  is  opposed  to  any  act  which  prevents  full 
and  fair  competition,  or  is  calculated  to  depreciate  values  or 
injure  the  sale.'  ]kit  this  rule  is  confined  to  cases  where  there 
is  an  agreement  not  to  bid,  and  does  not  extend  to  cases  where 
several  persons  join  to  make  a  purchase  for  their  common  bene- 
fit without  an  agreement  not  to  compete;  -  nor  to  cases  where 
several  creditors,  no  one  of  whom  would  be  willing  to  [pur- 
chase a  property  of  so  large  value,  unite  to  purchase.  Such  a 
union  is  calculated  to  enhance  the  price  rather  than  injure  the 
sale;  and  where  such  persons  agree  together  that  they  will 
authorize  one  person  to  bid  for  the  property'  on  their  joint 
account  the  agreement  will  not  be  considered  unlawful.^ 
Whether  such  a  combination  is  fraudulent  or  not  depends 
upon  intention.  Prima  facie  it  would  not  be  fraudulent,  and 
could  only  be  made  to  appear  otherwise  by  showing  that  such 
an  arrangement  was  made  for  the  purpose  and  with  the  view 
of  preventing  fair  competition,  and  by  reason  of  want  of  bid- 
ders to  depress  the  price  of  the  property  offered  for  sale  below 
the  fair  market  value.  In  such  an  event  the  sale  might  be 
avoided  as  between  the  parties  as  a  fraud  upon  the  rights  of 
the  vendor.  It  is  the  end  to  be  accomplished  that  makes  such 
combinations  lawful  or  otherwise;  and  if  the  arrangement  is 
entered  into  for  no  such  fraudulent  purpose,  but  for  the  mut- 
ual convenience  of  the  parties,  as  with  a  view  of  enabling 
them  to  become  purchasers,  each  being  desirous  of  purchasing 
a  part  of  the  ])roperty  offered  for  sale,  and  not  an  entire  lot,  or 
induced  by  any  other  reasonable  and  honest  purpose,  such 
airreement  will  be  valid  and  bindin^:.'' 

1  Easton  v.  Mawkinney,  37  Iowa,  <  Jenkins  v.  Frink,  30  Cal.  586.  An 
601;  Bellows  V.  Russell,  20  N.  H.  427;  agreement  between  A.  and  B.  that 
Jenkins  v.  Frink,  30  Cal.  586;  Gar-  B.  will  permit  A.  to  buy  a  tract  of 
diner  v.  Morse,  25  Me.  140;  Hook  v.  land  wliich  is  to  be  sold  at  auctioii. 
Turner,  22  Mo.  333.  and  that  A.  will  buy  it  and  convey  a 

2  Jenkins  v.  Frink,  30  Cal.  586;  certain  j  art  thereof  to  B.  at  an  ai - 
Phippen  v.  Stickney,  3  Met.  (Mass.)  praisement  to  be  made  by  certain 
388;  and  see  Gardiner  v.  Morse,  25  persons,  is  not  void  on  its  face  for 
Me.  140.  illegality.      Phippen  v.   Stickucy,  3 

» Bank  v.  Sprague,  20  N.  J.  Eq.  159 ;   Met.  (Mass.)  381.     " 
Bellows  V.    Russell,    20  N.    H.    427; 
Bradley  v.  Kingsley,  43  N.  Y.  534. 
17 


258  CONTRACT    OF    SALE. 

It  will  be  seen,  therefore,  that  no  definite  rule  can  be  an- 
nounced that  will  be  controlling  in  every  case,  and  courts  will 
look  beyond  the  mere  fact  of  an  association  of  persons  formed 
for  the  purpose  of  bidding  at  a  sale.  If  upon  examination  it 
is  found  that  the  object  and  purpose  of  the  association  is  not 
to  prevent  competition,  but  to  induce  and  enable  the  persons 
composing  it  to  participate  in  the  biddings,  the  sale  should  be 
upheld;  otherwise  if  for  the  purpose  of  shutting  out  com- 
petition and  depressing  the  sale  so  as  to  obtain  the  property 
at  a  sacrifice.  Each  case  must  depend  upon  its  own  circum- 
stances, and  it  is  competent  for  courts  to  inquire  into  them 
and  to  ascertain  and  determine  the  true  character  of  each.' 

§  1 2.  Auctioneer's  memorandum.  Auction  sales  stand  upon 
the  same  footing  as  other  sales  under  the  statute  of  frauds,  and 
a  memorandum  is  essential  to  sustain  the  sale.  An  auctioneer, 
however,  when  selling  real  estate  at  auction,  acts  as  the  agent 
of  both  vendor  and  vendee;  and  his  entry  in  the  sale-book,'-  at 
the  time  of  the  sale,  containing  a  description  of  the  property 
sold,  the  name  of  the  vendor  and  purchaser,  the  price  and 
terms,  is  a  sufficient  memora.ndum  in  writing,  within  the  intent 
of  the  statute  of  frauds,  and  binds  both  parties.^  But  to  effect 
this  the  memorandum  must  on  its  face,  or  in  connection  with 
some  writing,*  contain  everything  necessary  to  show^  the  con- 

i  Kearney  v,  Taylor,  15  How.  (U.  S.)  gain  may  be  gathered  from  two  or 

519 ;  and  see  Bradley  v.  Kingsley,  43  more  separate  papers,  if  the  signed 

'  N.  Y.  534 ;  Jenkins  v.  Frink,  30  Cal.  memorandum    contains   such  refer- 

586;  Easton  v.  Mawkinney,  37  Iowa,  ence  to  the  other  papers  as  to  make 

601;  Fenner  v.  Tucker,  6  R.  I.  551;  the  latter  part  of  the  former;  but  the 

Loyd  V.  Malone,  23  111.  43 ;  Miltenbor-  connection  between  the  signed  and 

ger  V.  Morrison,  39  Mo.  71 ;  Phippen  unsigned  papers  cannot  be  made  by 

V.  Stickney,  2  Met.  (Mass.)  384.  parol  evidence   that  they  were  in- 

2  The  entry  by  a  clerk,  under  the  tended  by  the  parties  to  be  read  to- 
direction  of  the  auctioneer,  will  be  gether,  or  of  facts  and  circumstances 
regarded  as  the  act  of  the  auctioneer,  from  which  such  intention  maybe 
Doty  V.  Wilder,  15  111.  407.  inferred.     Johnson  v.  Buck,  35  N.  J. 

3  Doty  V.  Wilder,  15  111.  407 ;  Walker  L.  338.  Thus,  an  indorsement  on  an 
V.  Herring,  21  Gratt.  (Va.)  678;  Mor-  order  of  sale  by  a  sheriff,  as  follows: 
ton  V.  Dean,  13  Met.  (Mass.)  385;  "Sold  to  A.  B.  for  $2,400,  Oct.  16, 
Johnson  v.  Buck,  35  N.  J.  L.  342;  1869,"  signed  "C.  D.,  sheriff,"  was 
Stadleman  v.  Fitzgerald,  14  Neb.  292 ;  held  not  a  sufficient  contract  or  mem- 
Pike  v.  Balch,  38  Me.  302.  orandum  of  sale  within  the  Indiana 

i  To  satisfy  the  statute  of  frauds  it  statute  of  frauds.  The  fact  that  such 
is  sufficient  tliat  the  terms  of  the  bar-    memorandum  was   indorsed  on  the 


SALES    BY    AUCTION.  259 

tract  between  the  parties  with  such  reasonable  certainty  that 
its  terms  may  be  understood  from  the  writing  itself  without 
recourse  to  parol  proof.' 

With  regard  to  the  form  of  the  memorandum,  it  wouhl  not 
seem  that  it  is  necessary  that  in  case  of  sales  of  several  parcels 
a  special  note  embodying  all  the  foregoing  features  should  be 
made  for  each  parcel  sold;  nor  is  this  the  general  practice  of 
auctioneers.  As  a  rule,  a  general  memorandum  entered  in  a 
book  by  the  auctioneer  at  the  commencement  of  an  auction 
sale,  showing  the  name  of  the  person  on  whose  account  the 
sale  is  made,  the  nature  of  the  property,  the  terms  of  ])ayment, 
referring  to  entries  following  the  names  of  purchasers  and 
lots  struck  off  to  each,  and  signed  by  the  auctioneer,  under 
which  he  enters  the  name  of  each  purchaser,  the  description  of 
the  property  sold  and  the  price,  is  a  sufficient  memorandum 
within  the  statute.^  In  every  instance,  however,  the  auction- 
eer's memorandum  must,  either  in  itself  or  in  connection  with 
other  writings  made  a  part  of  it,  conform  in  all  respects  to  the 
rules  as  laid  down  for  agreements  between  parties  on  private 
sale;  and  a  memorandum  setting  forth  tho  names,  price,  de- 
scription and  fact  of  part  payment,  but  not  the  "conditions  of 
sale,"  which  it  states  the  vendor  shall  duly  observe  and  fulfill, 
would  be  insufficient  within  the  statute  of  frauds.^  So,  also, 
an  unsigned  memorandum  of  an  auctioneer,  unconnected  by 
annexation  or  reference  with  any  writing  duly  authenticated 
by  the  signature  of  the  part}^  sought  to  be  charged,  is  not  a 
memorandum  within  the  meaning  of  the  statute.* 

order  of  sale,  but  without  any  refer-  pany,  of  the  real  estate,  nail-works, 

ence  to  it  for  the  ascortaininent  of  water-privilege,   buiklings    and  ma- 

the  thing  sold,  is  no  better  than  if  chinerj',  agreeable  to  the  plans  and 

indorsed  on  any  other  paper.    Ridge-  schedule    herewith.      Sale    to    Silas 

way  V.  Ingram,  50  Ind.  145.  Dean  for  $30,000.     April  oth,  1843."' 

iDoty     V.    Wilder,     15     111.    407;  Held  that,  as  this  memorandum  did 

Gwathney    v.    Cason,    74    N.    C.   5;  not  contain  nor  refer  to  the  conditions 

Ridgeway   v.  Ingram,  50  Ind.    145.  of  sale,  it  did  not  take  the  case  out 

As  where  an   auctioneer,  on  selling  of  tho  statute  of  frauds.     Morton  v. 

real  estate  to  B.  D.  at  auction,  after  Dean,  13  Met.  (Mas?.)  38.1. 

reading   or   exliibiting  written   con-  -Price  v.  Durin,  oG  Barb.  (N.   Y.) 

ditions    of    sale,    made   tliis    memo-  647;Springerv.  Kleinyorge,  8,'5M<>.  152. 

raudum    in  writing:  "Sale,  on    ac-  ^ Riley   v.    Farnsworth,    110   Mass. 

count  of  Messrs.  Morton  and  Dean,  223. 

assignees  of  the  Taunton  Iron  Com-  ■'RafTcrty  v.  Longee,  G3  N.  H.  54. 


2G0  CONTRACT   OF   SALE. 

It  is  further  essential  to  the  validity  of  the  auctioneer's 
memorandum  that  he  shall  sustain  no  relation  toward  the 
vendee  inconsistent  with  the  true  character  of  an  agent.  The 
chief  reason  in  support  of  the  rule  that  an  auctioneer,  acting 
solely  as  such,  may  be  the  agent  of  both  parties  to  bind  them 
by  his  memorandum  is  that  he  is  supposed  to  be  a  disinter- 
ested person,  having  no  motive  to  misstate  the  bargain,  and 
equally  entitled  to  the  confidence  of  both  parties.  But  this 
reason  fails  where  he  is  a  party  to  the  contract  and  a  party  in 
interest  also.  Hence,  a  vendor  cannot  act  as  the  auctioneer 
of  his  own  sale.  It  requires  no  demonstration  to  show  that 
the  mischief  intended  to  be  prevented  by  the  statute  of  frauds 
would  still  continue  to  exist  if  one  party  to  a  contract  could 
make  a  memorandum  of  it  which  could  absolutely  bind  the 
other.  If  such  were  the  case  the  statute  would  furnish  no  se- 
curity against  fraud;  for  the  vendor  could  fasten  his  own 
terms  on  his  vendee,  and,  the  contract  being  in  writing,  the 
vendee  would  be  unable  to  show  by  parol  evidence  that  the 
terms  of  the  bargain  were  incorrectly  or  imperfectly  stated. 
He  could  not  vary  or  alter  it  by  the  testimony  of  those  pres- 
ent at  the  sale,  and  the  publicity  of  a  sale  by  auction  would 
be  no  safe-guard  against  false  statements  of  the  terms  of  sale 
made  in  the  written  memorandum  signed  by  a  party  acting  in 
double  capacit}^  of  auctioneer  and  vendor.  Nor  can  it  make 
any  difference  as  to  the  power  of  the  vendor  to  make  the 
memorandum  binding  on  the  vendee  that  the  sale  is  made  by 
the  former  in  his  representative  or  fiduciary  character  as  exec- 
utor, administrator,  guardian,  trustee,  etc.  He  is  still  the 
party  to  the  contract;  the  price  is  to  be  paid  to  him;  he  is  to 
deal  with  the  purchase  money;  his  interest  and  bias  would 
naturally  be  in  favor  of  those  whom  he  represented;  and,  what 
is  more  material,  in  case  of  dispute  or  doubt  as  to  the  terms  of 
the  contract,  his  duties  and  interests  would  be  adverse  to  the 
vendee.  lie  would,  therefore,  stand  in  a  relation  which  would 
necessarily  disqualify  him  from  acting  as  the  agent  of  both 
parties.^ 

§  13.  Auctioneer's  receipt  as  memorandum.  Where,  as  is 
the  almost  universal  practice,  a  deposit  is  required  at  the  time 

iBent  V.  Cobb,  9  Gray  (Mass.),  397;  TuU  v.  David,  45  Mo,  444. 


SALES  BY  Accnox.  261 

of  sale,  a  receipt  therefor  given  by  the  auctioneer  will  in 
many  cases  amount  to  a  valid  agreement  on  the  part  of  the 
vendor  within  the  statute. 

§14-.  The  deposit.  An  almost  invariable  rule  in  sales  by 
auction  is  for  the  purchaser  to  pay  something  at  the  time  of 
sale;  and  the  amount  or  the  method  of  its  ascertainment  is 
always  made  a  part  of  the  terms  and  conditions  upon  which 
the  sale  is  made.  This  payment,  which  is  technically  termed 
a  deposit,  is  considered  as  a  part  of  the  purchase  money,  and 
not  as  a  mere  pledge.^ 

Usually  where  the  purchaser  fails  or  refuses  to  perform  the 
contract  the  deposit  is  forfeited  to  the  vendor,-  although  this 
is  a  matter  largely  dependent  on  intention;  and,  while  this 
result  is  allowed  to  prevail  in  all  cases  where  it  forms  a  special 
clause  in  the  conditions  of  sale,  it  will  also  follow  in  other 
cases  if  it  can  be  implied  from  the  contract  that  such  was  the 
intention  of  the  ])arties.  It  has  been  held,  however,  that  the 
deposit  will  not  be  forfeited  upon  the  purchaser's  failure  to 
comply  where  there  is  no  provision  to  that  effect  in  terms.^ 

If  the  title  prove  defective,  or  if  the  contract  is  rescinded  on 
the  ground  of  fraud  or  misrepresentation  on  the  part  of  the 
vendor,  or  if  the  vendor  refuses  or  is  unable  to  perform  it,  or 
if  for  any  other  reason  the  sale  be  avoided  without  fault  on 
the  part  of  the  purchaser,  the  deposit  must  be  returned. 

Where  real  estate  is  sold  at  auction  and  a  deposit  is  required, 
the  auctioneer  is  the  proper  custodian  thereof;  he  should  safely 
keep  it  and  pay  it  to  neither  party  without  the  consent  of  the 
other  until  the  sale  is  completed.*  But  where  the  purchaser 
suffers  a  long  time  to  elapse, and  by  other  acts  there  appears 
to  be  an  intention  on  the  part  of  the  purchaser  to  consider  the 
owner  of  the  property  entitled  to  it,  a  recovery  will  not  be 
permitted  as  against  the  auctioneer  in  a  suit  by  the  purchaser 
for  the  deposit  after  the  latter  has  paid  it  over  to  the  owner.' 

1  Kelly  V.  Thompson,  101  Mass.  291.  this  case  nearly  five  months  after  an 

-  Curtis  V.  Aspinwall,  114  Mass.  187.  auction  sale  of  land  the  vendor  gave 

'Bleeker  v.  Graham,  2   Edw.  Ch.  the    purchaser    a    contract    of    sale 

(N.  Y.)  647.  acknowledging  the  receipt  of  the  de- 

*  Teaffe     v.     Simmons,     11    Allen  posit     money,    and     the     jiurcliaiser 

(Mass.),  342.  tlirough  wliose  acts  the  auctioneer 

5  Ellison  V.  Kerr,    86  111.    427.     In  had  been  induced  to  pay  the  deposit 


262  CONTRACT   OF   SALE. 

As  a  rule,  however,  he  should  not  part  with  the  deposit  until 
the  sale  has  been  carried  into  effect;  if  both  parties  claim  it 
he  may  file  a  bill  of  interpleader  and  pay  the  money  into  court. 
§  15.  llesale.  One  of  the  most  common  features  inserted 
in  the  conditions  of  sale,  where  property  is  exposed  at  public 
auction,  consists  in  the  provision  for  resale  in  case  of  pur- 
chaser's default.  B}'^  this  ])rovision  the  purchaser  is  usually 
allowed  a  limited  time  within  which  to  comply  with  the  terms 
of  sale,  and  in  case  of  his  neglect  or  refusal  so  to  do  within 
the  time  limited  the  property  is  then  to  be  resold  on  account 
of  the  first  purchaser.  AVhere  the  terras  of  sale  presented  by 
the  auctioneer  as  forming  the  conditions  of  the  contract  con- 
tain a  provision  of  this  character  the  legal  effect  of  the  same  is 
to  extend  to  the  vendee  an  option  of  taking  the  estate  after  it  is 
bid  off  by  him  or  having  it  sold  again  on  his  account.  If  upon 
resale  it  produces  more  than  on  the  first  sale  the  surplus  would 
belong  to  him ;  if,  on  the  other  hand,  it  should  sell  for  less,  the 
difference  would  form  a  loss  to  which  he  would  be  exposed, 
and  for  which  an  action  would  lie  against  him  by  the  vendor; 
but  no  action  could  be  maintained  by  the  vendor  against  such 
purchaser  for  a  breach  of  the  contract  until  a  resale  had  been 
had  and  a  deficit  ascertained.^ 

to  the  vendor  suffered  two  years  to  ceased  to  apply,  and  the  purchaser 

elapse  after  the  sale  before  making  could  not  recover  the  deposit, 

demand  for  the  deposit.     Held,  that  i  Webster  v.  Iloban,  7  Cranch  (U. 

the  general  rule  that  the  auctioneer  is  S.),  399. 
the  stake-holder  of  both  parties  had 


PART  IT. 

INCIDENTS   OF   THE   CONTRACT. 


CHAPTER  IX. 


INVESTIGATING  THE  TITLE. 


§1. 

General  principles. 

S  15. 

Continued  —  Possession  of 

2. 

Caveat  emptor. 

prior  vendors. 

3. 

Doctrine  of  notice. 

16. 

Liens  and  incumbrances. 

4. 

Constructive  notice. 

17. 

Mortgages. 

5. 

When  purchaser  is  chargeable 

18. 

Judgment  liens. 

with  notice. 

19. 

Decrees. 

6. 

What  notice  sufficient. 

20. 

Mechanics'  liens. 

7. 

What  will  put  a  party  on  in- 

21. 

Vendors'  liens. 

quiry. 

22. 

Real  estate  charged  with  lega- 

8. 

Notice  from  registration. 

cies. 

9. 

Recitals  in  deeds. 

23. 

Easements  and  servitudes. 

10. 

Inquiries  in  pais. 

24. 

Pending  litigation. 

11. 

Notice  of  unrecorded   instru- 

25. 

Partnership  property. 

ments. 

26. 

Notice  to  agent. 

12. 

Notice  of  parol  agreements. 

27. 

Joint  purchasers. 

13. 

Notice  of  fraud. 

28. 

Rebutting  presumption  of  no- 

14. 

Possession  as  an  evidence  of 
title. 

tice. 

§  1.  General  principles.  Under  the  usages  now  prevailing 
it  is  customary,  u])on  the  negotiation  of  a  trade,  to  allow  the 
vendee  a  sutlicicnt  time  to  investigate  the  character  of  the  title 
he  is  purchasing,  and  provision  for  such  investigation  is  ordi- 
narily incorporated  in  the  agreement  of  sale.  There  is  no 
positive  law  u])on  the  subject,  and  the  time  is  generally  vari- 
ously fixed  at  from  ten  to  sixty  days,  adapting  itself  to  the 
exigencies  of  the  occasion  or  the  convenience  of  the  parties. 
Sometimes  this  interim  between  the  commencement  and  com- 
pletion of  sale  is  made  essential  by  the  terms  of  the  agreement, 
and  if  the  vendee  fails  to  comply  with  the  terms  of  the  con- 
tract within  the  time  stipulated  it  gives  to  the  vendor  a  right 


264  INCIDENTS    OF   THE    CONTRACT. 

of  forfeiture  of  the  contract  and  of  whatever  may  have  been 
paid  by  way  of  earnest-money;  but  unless  this  consequence 
clearly  follows  as  a  matter  of  fair  construction,  time  will  not 
be  deemed  essential,  and  until  the  vendor  has  put  the  vendee 
in  default  by  some  recognized  legal  method,  or  unless  the 
vendee  has  voluntarily  abandoned  the  undertaking,  he  will  be 
permitted  to  complete  the  purchase  within  any  reasonable 
time  after  its  inception. 

The  duty  of  careful  inquiry  into  the  title  is  imposed  upon 
the  vendee  by  law;  and  this  duty  he  cannot  forego,  unless  by 
reason  of  the  representations  of  the  vendor  he  is  prevailed 
upon  so  to  do.  The  law  presumes  that  every  man,  not  being 
under  any  legal  disability,  will  make  due  investigation  with 
respect  to  the  thing  he  is  about  to  purchase,  and  that  he  buys 
with  full  knowledge  of  all  the  facts  that  such  investigation 
would  disclose;  and  while  he  is  permitted  to  recover  upon  any 
express  agreement  that  he  may  have  taken  by  way  of  cove- 
nant, yet  if  he  fails  to  so  protect  himself  he  buys  at  his  peril, 
and  cannot  afterwards  be  heard  to  complain  unless  some  fraud 
has  been  practiced  upon  him. 

The  usual  means  provided  for  an  inquiry  into  the  title  is  an 
abstract  of  the  ])ublic  records,  or,  as  it  is  usually  called,  an 
abstract  of  the  title;  but  in  case  this  is  not  furnished  the  duty 
of  examining  the  records  will  devolve  upon  the  vendee,  and 
he  is  charged  with  constructive  notice  of  every  fact  which 
such  an  investigation  would  have  disclosed.  In  addition 
thereto  he  must  also  notice  the  character  of  the  possession  of 
the  premises;  and  if  any  information  is  brought  home  to  him, 
calculated  to  impart  knowledge  or  to  apprise  him  of  any  rights 
or  interests  in  conflict  with  those  which  he  is  about  to  pur- 
chase, he  must  duly  prosecute  an  inquiry  in  relation  thereto. 

In  the  following  paragraphs  nothing  more  than  a  general 
survey  of  the  subject  is  attempted;  and  in  order  to  avoid  rep- 
etition a  number  of  topics  which  properly  come  within  the 
scope  of  the  chapter  are  omitted,  as  they  can  be  more  advan- 
tageously treated  in  connection  with  other  matters  to  which 
they  directly  relate,  and  to  which  the  reader  is  referred.^ 

^  See  post,  "Fraudulent  Convey-  Incumbrance,"  etc.  ;  also  the  succeed- 
ances;"    "Conveyances    subject   to   ing  chapter  on  "  Objections  to  Title." 


INVESTIGATING    TIIK    rriLK.  2G5 

§  2.  Caveat  emptor.  TIk;  l;i\v  will  not  extend  its  protec- 
tion to  those  wlio,  through  negligence  or  in;ittention  to  their 
business,  suffer  an  advantage  to  be  taken  of  their  credulity, 
nor  excuse  them  for  a  neglect  to  examine  and  by  proper  ob- 
servation to  ascertain  whether  that  which  they  propose  to 
purchase  corresponds  to  their  desires  or  anticipations.  It  is 
the  vigilant  whom  the  law  regards,  not  tliose  who  sleep  on 
their  rights;  and  if,  through  inattention,  neglect  or  blind  cre- 
<lulity,  it  tmiis  (lilt  that  the  title  of  land  is  defective,  or  that 
the  projxM'ty  itself  is  inadapted  to  the  purposes  for  which  it 
was  purchased,  the  vendee  will  ordinarily  be  entitled  to  no 
relief,  at  law  or  in  equity,  except  as  he  may  find  it  througli 
the  covenants  he  has  received ;  and  if  he  has  further  neglected  to 
])rotect  himself  by  covenants,  he  is  practically  without  a  rem- 
edy on  a  subsequent  failure  of  title.' 

This  doctrine  is  known  in  the  law  by  the  general  term  caveat 
emptor,  and  though  originally  applied  only  to  chattel  sales  is 
now  used  with  equal  effect  in  sales  of  realty. - 

§  3.  Doctrine  of  notice.  The  duty  of  investigating  a  title 
rests  mainly  upon  that  peculiar  feature  of  law  to  which  the 
term  "  notice  "  has  been  applied.  The  title  of  a  purchaser  for 
value  cannot  ordinarily  be  impeached,  unless  be  has  had  notice 
of  the  infirmity  which  goes  to  defeat  it;  but  this  notice  does 
not  necessarily  mean  "knowledge,"  and  though  the  purchaser 
may  have  been  innocently  ignorant  in  fact,  and  from  a  moral 
point  of  view,  he  may  nevertheless  be  chargeable  with  knowl- 
edge derived  from  notice.  Notice  may,  of  course,  be  actual; 
and  in  such  case  knowledge  is  a  necessar}'  resultant,  or  it  may 
be  constructive,  which  is  the  legal  equivalent  of  actual  notice, 
and  although  the  person  sought  to  be  affected  thereby  may 
liave  had  no  notice  —  in  fact,  he  may  be  so  situated  that  he  is 
estopped  to  aver  this  fact  or  to  deny  that  he  did  not  have  no- 
tice. Kotice  is  further  classified  by  the  elementary  writers  as 
express  and  implied  —  the  latter  term  being  used  where  notice 
is  imputed  to  a  party  shown  to  be  conscious  of  having  means 
of  knowledge  which   he  docs  not  use,  as  where  he  chooses  to 

1  Murray  v.  Ballon,  1  Johns.  Ch.  2  Abbott  v.  Allen,  2  Johns.  CMi.  519; 
(N.  Y.)  566 :  Abbott  v.  Alien,  2  Johns.  Ui)ton  v.  Tribilcjck,  1  Otto  (U.  S.),  45. 
Cli.  (N.  Y.)  519. 


260  INCIDENTS    OF   THE    CONTRACT. 

remain  voluntarily  ignorant,  or  is  grossly  negligent  in  not 
pursuing  inquiries  suggested  by  known  facts.^ 

The  terms  "implied"  and  "constructive"  notice  are  fre- 
quently used  as  synonymous,  yet  there  seems  to  be  a  marked 
distinction  between  them.  The  former,  as  previously  re- 
marked, is  an  imputation  arising  from  an  inference  of  fact; 
while  the  latter,  being  the  creature  of  positive  law,  rests  upon 
strict  legal  inference. 

There  is  some  conflict  among  writers  and  in  the  decided 
cases  as  to  what  constitutes  actual  notice,  although  it  has  been 
said  that  much  of  the  difference  is  verbal  only  —  more  apparent 
than  real;  and  the  general  propositions  which  directly  affect 
the  question  are,  in  the  main,  well  agreed  upon.  It  does  not 
necessarily  mean  personal  information  or  conscious  knowledge, 
and  may  rest  in  inference.  It  may  be  proved  by  direct  evi- 
dence or  it  may  be  inferred  or  implied  from  indirect  evidence  — 
circumstances  —  and  is  a  conclusion  of  fact,  capable  of  being 
established  by  all  grades  of  legitimate  evidence.- 

The  doctrine  of  actual  notice  implied  by  circumstances 
necessarily  involves  the  rule  that  a  purchaser,  before  buying, 
should  clear  up  the  doubts  which  apparently  hang  upon  the 
title  by  making  due  inquiry  and  investigation.  If  a  party  has 
knowledge  of  such  facts  as  would  lead  a  fair  and  prudent  man, 
using  ordinary  caution,  to  make  further  inquiries  and  he 
avoids  the  inquiry,  he  is  chargeable  with  notice  of  the  facts 
which  by  ordinary  diligence  he  would  have  ascertained;  he 
has  no  right  to  shut  his  eyes  against  the  light  before  him,  nor 
to  disregard  the  signals  seen  by  him;  and  if  he  does  so  it  may 
be  well  concluded  that  he  is  avoiding  notice  of  that  which  he 
in  reality  believes  or  knows.'^     Hence,  it  is  said  actual  notice 

iKnapp  V.   Bailey,    79    Me.    195;  Rogers  v.  Jones,  8  N.  H.  264;  Hull 

Hovey  v.  Blanchard,  13  N.  H.  145;  t.   Noble,    40    Me.    480;    Maupin  v. 

Williamson  v.  Brown,  15  N.  Y.  054;  Emmons,  47  Mo.  306;  Maul  v.  Rider, 

Curtis  V.  Mundy,  3  Met.  (Mass.)  405;  59  Pa.  St.  171. 

Hoppin  V.  Doty,  25  Wis.  573;  Eck  3  See  Lamb  v.  Pierce,  113  Mass.  72; 
V.  Hatcher,  58  Mo.  235;  Carter  v.  Williamson  v.  Brown,  15  N.  Y.  354; 
Hawkins,  62  Tex.  393;  Hoy  v.  Bram-  Rogers  v.  Joues,  8  N.  H.  264;  Bart- 
hall,  19  N.  J.  Eq.  563.  lett  v.  Glasscock,  4  Mo.  62;  Blatchley 

2Blatchley  v.   Osborne,    33  Conn.  v.  Osborn,  33  Conn.  2^16. 
226;    Buck   v.    Paine,  50  Miss.   618; 


INVKSTIGATINO    THE    TITI.K.  2G7 

of  facts  which  to  tlie  mind  of  ;i  j)rii(lonL  man  indicuto  notice 
is  proof  of  notice.' 

Tlie  same  facts  nia\'-  sometimes  be  such  as  to  pi-ove  both 
actual  and  consti'uctive  notice;  that  is,  a  court  mi^dit  infer 
constructive  notice  and  a  jury  actual  notice  from  tlie  facts, 
while  on  the  other  hand  there  may  be  cases  where  the  facts 
show  actual  notice  when  they  do  not  warrant  the  inference 
of  constructive  notice.- 

Every  species  of  notice  is  ineffectual  as  a  restraint  on  existing 
rights,  and  can  onl}'  operate  on  those  rights  which  are  subse- 
quently ac(juii"ed. 

§  4.  Construc'tive  notice.  The  law  of  notice  derives  what- 
ever of  sublilty  or  intricacy  it  may  possess  from  that  part 
technically  known  as  constructive  notice,  which  is  not  notice 
at  all,  but  rather  a  legal  inference  from  established  facts;'  and 
while  courts  and  writers  have  at  different  times  made  general 
statements  calculated  to  outline  its  character,  no  very  clear 
exposition  of  its  real  nature  has  ever  been  made;  nor  has  any 
writer  been  able  to  formulate  any  precise  rule  as  to  what  does 
or  does  rot  constitute  constructive  notice,  because  uncjues- 
tionably  that  which  may  not  affect  one  man  may  be  aljun- 
dantly  sufiicient  to  affect  anotiier;  and  so,  as  Mr.  Sugden  ob- 
serves, "every  one  who  has  attempted  to  define  what  it  is  has 
declared  his  inability  to  satisfy  even  himself."^  The  test  gen- 
erally ap])licd  by  American  courts  has  been  whether  the  facts 
are  sufKcient  to  put  a  prudent  m.an  on  inquiry,  and  whether 
an  inquiry  has  been  prosecuted  with  reasonable  care  and  dili- 
gence;* for  whatever  is  sufficient  to  put  a  party  upon  inquiry 
which  would  lead  to  the  truth  is,  in  all  respects,  equal  to  anil 
must  be  regarded  as  notice;  and  if  a  i)urchascr  acts  in  bad  faith 
and  wilfully  or  negligently  shuts  his  eyes  against  those  lights 

13  Wash.  Real  Prop.  333.  ton  v.  Guldiiigs,  47  Tex.  109;  Holms 

2  As  where  a  deed  is  not  regularly  v.  Cluidbourne,  45  Mo.   CO;  Warron 

recorded,  and  hence  not  giving  con-  v.    Svvett.    31   N.    H.    332;   Alien   v. 

structive  notice,  but  a  purcliaser  sees  Poole,  54  Miss.  i523;  Briggs  v.  Taylor, 

it  on  the  records  thereby  receiving  28  Vt.   180;  Blanchard   v.    Ware,  4'.> 

actual   notice.     Hastings   v.    Cutler,  Iowa,  530;  Brown  v.  Volkiiiing,   (54 

24  N.  H.  481.  N.  Y.  76;  Edwards  v.  Thonip.-^on.  71 

^  Birdsall  v.  Russell,  29  X.  Y.  220.  N.  C.  177 ;  Pell  v.  McElroy,  30  Cal. 

^2Sugd.  Vend.  570.  268. 

•'  Hull  V.  Noble,  40  Me.  459 ;  Little- 


2G3 


INCIDENTS    OF    THE    CONTRACT. 


which,  witli  proper  observation,  would  lead  him  to  a  knowl- 
edge of  facts  affecting  the  subject  of  his  purchase,  he  will  be 
held  to  have  notice  of  such  facts.' 

A  purchaser  is  constructively  charged  with  notice  of  every- 
thing that  appears  on  the  face  of  the  deeds  constituting  his 
chain  of  title;'-  but  he  is  not  bound  to  inquire  into  collateral 
circumstances.^  So,  also,  he  must  take  notice  of  the  contents 
of  a  deed  referred  to  in  the  convej'ance  under  which  he  holds ;^ 
yet  this  I'ule  does  not  re(]uire  him  to  take  notice  of  a  fact  ex- 
hibitetl  in  the  deed  which  is  wholly  foreign  to  the  subject 
of  the  reference.^  Further,  it  is  a  general  rule  that  a  pur- 
chaser is  constructive!}'  charged  with  notice  of  all  facts  ex- 
posed upon  the  public  records  which  directly  affect  or  lie  in 
the  line  of  the  title  he  is  receiving. 

The  general  rule  that  a  purchaser  of  real  estate  is  charge- 
able with  constructive  notice  of  all  duly-recorded  conveyances 
of  such  land  executed  b}'  his  grantor  applies  to  equitable  as 
well  as  to  lei2:al  estates.^ 


'  Chicago,  etc.  R.  R.  v.  Kennedy, 
70  III.  350;  Barnard  v,  Campau,  29 
Mich.  162 ;  Littleton  v.  Giddings,  47 
Tex.  109 ;  Cunningham  v.  Pattee,  99 
Mass.  248. 

-Morrison  v.  Morrison,  38  Iowa, 
73;  Burch  v.  Carter,  44  Ala.  115. 
Thus,  a  purchaser  from  one  of  two 
joint  owners  is  chargeable  with 
notice  of  the  interest  of  the  other,  as 
shown  by  the  conveyance  to  his 
vendor.  Campbell  v.  Roach,  45  Ala, 
667.  But  where  two  persons  hold 
undivided  interests  in  the  same  par- 
cel of  land  by  separate  deeds,  of 
different  dates  and  froni  different 
grantors,  a  person  dealing  in  good 
faith  with  one  of  them  in  reference 
to  his  interest  is  not  bound  with 
notice  that  the  property  is  partner- 
ship property  from  tlie  knowledge 
merely  that  the  holders  tliereof  are 
partners,  and  make  use  of  the  prem- 
ises for  partnership  purposes,  where 
nothing   on  the  record  indicates  a 


partnership    holding.     Reynolds    v. 
Ruckman,  35  Mich.  80. 

3  Burch  v.  Carter,  44  Ala.  115. 

*  Morrison  v.  Morrison,  38  Iowa, 
73 ;  Deason  v.  Taylor,  53  Miss.  697. 

5  Thus,  it  does  not  require  him  to 
take  notice  that  the  deed  has  incor- 
porated in  it  a  bill  of  sale  of  person- 
alty in  which  a  lien  is  attempted  to 
be  retained  by  the  grantor.  Mueller 
V.  Engelin,  12  Bush  (Ky.),  441. 

"  Digman  v.  McCollum,  47  Mo.  372. 
A  purchaser  of  a  large  tract  of  land 
for  a  valuable  consideration,  held 
chargeable  with  notice  of  an  equi- 
table title  under  a  trust  created  by  a 
decree  in  chancery,  he  having  made 
no  inquiries  of  the  vendor  or  any 
other  person  about  the  title,  nor 
called  for  an  inspection  of  the  title 
deeds  or  an  abstract  thereof,  but  re- 
lied on  the  possession  of  the  vendors, 
and  their  assertion  of  title  and  the 
warranty  clause  contained  in  the 
deed  of  conveyance.  Witter  v.  Dud- 
ley, 42  Ala.  616. 


INVESTIGATING    TllK    TITLE.  209 

§  5.  Wlieii  purelisiser  is  chargeable  with  notice.     It  is  dif 

ficult  if  not  impossible  to  lay  down  any  general  rule  as  to 
■what  facts  will  in  every  case  be  sullicient  to  charge  a  party 
with  notice  or  ])ut  liini  on  inquiry.  It  may  be  said,  however, 
that  a  purchaser  buying  real  estate,  of  the  title  to  which  there 
must  be  evidence  in  writing,  is  chargeable  with  notice  of  any 
inlirmity  of  his  title  which  the  writing  discloses.'  If  he  has 
notice  of  ii  prior  claim  or  equity  or  of  facts  which  if  followed 
up  would  discover  the  truth,  he  is  put  under  a  duty  to  make 
the  investigation;  and,  if  he  fails  to  do  so,  he  is  chargeable 
with  knowledge  which  the  inquiry  would  have  disclosed.-  So, 
also,  a  purchaser  2)€ndente  lite  is  bound  by  the  result  of  the 
suit,  and  chargeable  with  notice  of  every  fact  pertaining 
thereto.^  The  purchaser  of  land  from  a  vendor  in  possession 
who  claims  it  as  his  own,  but  who  has  no  legal  title  except  as 
trustee  for  another,  is  chargeable  with  notice  of  the  trust;* 
and  generally  a  purchaser  is  held  affected  with  notice  of  all 
that  is  patent  on  an  examination  of  the  premises  he  is  about 
to  buy."' 

The  possession  of  land  by  a  person  at  the  time  of  his  death 
is  j^rima  facie  evidence  of  ownership  at  that  time,  and  a  sub- 
sequent purchaser  of  the  legal  title  will  be  conclusively  pre- 
sumed to  know  that  whatever  rights  such  deceased  person  had 

iCorbitt  V.  Clonny,  52  Ala.    480;  profits  of  the  land.     Dudley  v.  Wit- 

Stidliam  v.  Matthews,  29  Ark.  GoO.  ter,  46  Ala.  G64. 

-Buck  V.  Paine,  50  Miss.  G48;  Car-  ^This  principle  finds  many  illustra- 
tor V.  Portland.  4  Oreg.  339 ;  Finch  v.  tions.  The  agent  of  a  party  claiming 
Deal,  68  Ga.  594;  Brinkman  V.  Jones,  title  to  real  estate  in  Chicago  put 
44  Wis.  498.  upon  tiie  premises  a  board  on  which 

'Holman  v.  Patterson,  29  Ark.  357;  was  printed  "For  sale  by  S.  H.  Ker- 

Kern  v.  Hazlerigg,  11  Ind.  443;  Tur-  foot  &  Co.,  48  Clark  St."     Kerfoot  & 

ner  v.  Babb,  GO  J\Io.   342 ;  Cooloy  v.  Co.    were  the  agents  of  the    party 

Bravton,  IG  Iowa,  10.  claiming  title.     HeM,  that  a  creditor 

••Jones  V,  Shaddock,  41  Ala.  3G2;  whose  judgment  lien  attached  while 

Smith  V.  Walter,  49  Mo.  250;  Ryan  V,  this    notice    was    posted    upon    the 

Doyle,  31  Iowa,  53.     But  if  a  mere  premises  was  thereby  notified  of  the 

want  of  caution  in  making  the  pur-  interest  of  the  i)arty  claiming  title, 

chase,  as  distinguished  from  fraudu-  since  upon  inquir}'  of  the  agents  lie 

lent  and  wilful  blindness,  is  all  that  could   have    ascrtained   tiie    extent 

can  be  iininited  to  him,  he  will  not  be  and  character  of  the  title,  and  could 

regarded  as  a  trustee  in  invitnm  so  not  therefore  be  considered  a  bona 

as  to  charg3  him  with  the  rents  and  fide  purcliaser.     Hatch  r.   Bigelow, 

39  111.  546. 


270  INCIDENTS    OF    THE    CONTRACT. 

in  the  land,  not  disposed  of  by  will  and  of  an  inheritable  char- 
acter, devolved  on  his  heirs;  and  his  possession  being  construct- 
ive notice  of  his  rights  at  the  time  of  his  death,  it  becomes  the 
duty  of  such  purchaser  to  inquire  of  his  heirs  and  ascertain 
the  extent  of  that  interest.^ 

§  G.  Wliat  notice  sufficient.  Whatever  fairly  puts  a  party 
on  inquiry  is  regarded  as  sufficient  notice  where  the  means  of 
knowledge  are  at  hand;'  and  a  purchaser,  whenever  he  has 
sufficient  knowledge  to  put  him  on  inquiry,  or  where  he  has 
been  informed  of  circumstances  which  ought  to  have  led  to 
such  inquiry,  is  deemed  to  have  been  sufficiently  notified  to 
deprive  him.  of  the  character  of  an  innocent  purchaser.'  It  is 
the  duty  of  every  person  w^ho  may  have  knowledge  or  infor- 
mation of  facts  sufficient  to  put  a  prudent  man  on  inquiry  as 
to  the  existence  of  some  right  or  title  in  conflict  with  that  he 
is  about  to  purchase  to  prosecute  the  same,  and  to  ascertain  the 
extent  of  such  prior  right;  and  if  he  wholly  neglects  to  make 
the  inquiry,  or,  having  begun  it,  fails  to  prosecute  it  in  a  rea- 
sonable manner,  the  law  will  charge  him  with  knowledge  of 
all  facts  that  such  inquiry  would  have  afforded.*  A  purchaser 
is  bound  to  take  notice  of  all  recitals  in  the  deed  through 
which  the  title  is  derived,'  and  is  affected  with  notice  of  every 
matter  or  thing  stated  in  the  several  conveyances  constituting 
his  chain  of  title.^  All  such  statements  and  recitals  are  suffi- 
cient to  raise  an  inquiry,  and  the  corresponding  duty  is  thrust 
upon  the  purchaser  to  investigate  and  fully  explore  everything 
to  which  his  attention  is  thereby  directed.^ 

iMcVey  V.  McQuality,  97  111.  93.  4  Blaisdell  v.  Stevens,  16  Vt.  179; 

2  Booth  V.  Barnuiii,  9  Conn.  286;  Spofiford    v.    Weston,    29    Me.    140; 

Wright  V.  Ross,  36  Cal.  437;  Nutev.  Blatchley  v.  Osborn,   33  Conn.   22G; 

Nute,  41  N.  H.  60;  Stevens  v.  Good-  Warren  v.  Sweet,  31  N.  H.  332:  Hoy 

enough,  26   Vt.   676;  Williamson  v.  v.  Bramhall,  19  N.  J.  Eq.  563;  McGee 

Brown,  15  N.  Y.  354;  Parker  v.  Foy,  v.  Gindrat,  20  Ala.  95;  Brinkman  v. 

43  Miss.  260.  Jones,  44  Wis.  498 ;  Erickson  v.  Raf- 

^  Pendleton  v.  Fay,  2  Paige  (N.  Y.),  ferty,  79  111.  209. 

202;  Price  v.   McDonald,  1  Md.  415;  5  Deason  v.  Taylor,  53  Miss.  697. 

Centre  v.  Bank,  22  Ala.  743;  Ring-  '•Burch  v.  Carter,  44  Ala.  115. 

gold  V.  Waggoner,  14  Ark.  69 ;  Shep-  •  Thus,  if  the  deed  recites  tiiat  the 

ardson  v.  Stevens,  71  111.  646;  Brown  sale  is   made  on   a  credit,  a  subse- 

V.  Valkening,  64  N.  Y.  76;  McLeod  quent  purchaser  is  bound  to  inquire 

V.    Bank,   42  Miss.    99;  Shatwell   v.  wliether    the    purcliase    mone)'  has 

Harrison,  30  Mich.  179.  been  jjaid.     That   the  time  for  the 


INVESTIGATING   THE   TITLE.  271 

Notice  to  bind  one  need  not  consist  of  positive  information, 
for  any  fact  that  would  |)iit  an  ordinarily  prudent  man  on  in- 
quiry will  sulfice;  ^  nor  is  it  essential  that  notice  of  an  equitable 
interest  should  come  from  the  interested  party  or  his  agent, 
for  such  notice  may  come  aliunde^  provided  it  be  of  a  charac- 
ter likely  to  gain  credit.^  Vague  rumors  or  mere  surmises 
are  insufficient  in  themselves;  but  where  parties  assume  to 
speak  from  knowledge,  and  particularly  when  such  parties 
stand  in  situations  which  may  reasonably  be  presumed  to  af- 
ford them  the  means  of  knowledge,  the  purchaser  cannot  dis- 
regard the  information  so  obtainetl.' 

While  no  {)urchaser  is  at  liberty  to  remain  intentionally 
ignorant  of  facts  relating  to  his  juirchase  within  his  reach,  and 
then  claim  protection  as  an  innocent  purchaser,  yet  it  would 
seem  that  he  is  not  necessarily  affected  with  notice  of  a  prior 
adverse  equity  received  from  a  stranger  to  the  transaction,  or 
person  not  interested  in  the  property;*  nor  will  vague  reports, 
mere  rumors  or  hearsay  concerning  such  equity,and  commu- 
nicated by  such  person,  be  sufficient  to  put  him  on  inquiry  and 
charge  him  with  knowledge  of  the  facts  that  he  might  thereby 
have  learned.-^  So,  also,  a  mere  statement  b}''  a  third  person 
that  the  title  was  void  will  not  in  itself  charge  the  buyer 
with  notice  of  facts  not  stated;"  and  generally,  if  the  informa- 
tion be  of  an  indelinite  character,  and  does  not  in  any  manner 
indicate  the  means  by  which  the  truth  of  the  matter  can  be 

])a3'ment  of  tlie  purchase  money,  as  3  Curtis  v.  Mundy,  3  Met.  (Mass.) 

stated  in  the  deed,  lias  elapsed  does  405;  Butcher   v.  Yocura,   (51   Pa.   St. 

not  authorize  liiui  to  presume  that  it  168;  Lawton  v.  Gordon,  37  Cal.  202. 

was  paid.    Deason  v.  Taylor,  53  Miss.  In  tiiis  case  the  purchaser  was  noti- 

097;  and  see  Morrison  v.  Morrison,  lied  by  the  recording  ofiicer  that  a 

38  Iowa,  73.  deed  had  been  liled  and   then  with- 

1  Meier  v.  Blume,  80  ^lo.  179.  drawn. 

-  As,  where  a  party  about  tcj  pur-  ■*  Parkhurst  v.  Hosford,  10  Sawyer 

cliase  real  estate  from  a  widow,  the  (C.  Ct.),  401 ;  Flagg  v.  Mann,  2  Sunin. 

legal  title  of  which  was  in  her,  was  (C    Ct.)  48G;    Butler  v.  Stevens,  26 

informed  by  tlie  grandfather  of   her  Me.   484;     Wood  worth    v.    Paige,    5 

minor   children   that    the    eijuitahle  Ohio  St.  70. 

title  had   been  in  the  deceased  hus-  ■'' Ratteree  v.   Conley,  74   tJa.    153; 

band  and  was  then  in  his  heirs,  held,  Flagg  v.  Mann,  2  Sumn.  (C.  Ct)  486; 

that  the  notice  came  from  a  proper  Ilottenstein  v.  Lerch,  104  Pa.  St.  454. 

jierson.     Butcher  v.  Yocum,  61   Pa.  ''R.^tteree  v.  Conley,  74    Ga.  153; 

St.  163.  Uall  V.  Livingstone,  3  Del.  Ch.  348. 


272  INCIDENTS    OF   THE    CONTRACT. 

ascertained,  such  information  will  not  amount  to  notice,  either 
actual  or  constructive.^ 

It  has  been  held,  however,  that  where  a  party  has  heard  of 
a  sale  of  land  before  he  purchased,  and  from  a  source  entitled 
to  reasonable  credit,  and  under  circumstances  not  likely  to  be 
forgotten,  a  duty  would  devolve  upon  him  of  tracing  out  the 
matter  and  ascertaining  its  truth.- 

§  7.  What  will  put  a  party  on  inquiry.  As  to  what  would 
be  a  sufficiency  of  facts  to  excite  inquiry  no  positive  rule  can 
very  well  be  established,  as  each  case  depends  largely  upon  its 
own  facts  and  attendant  circumstances.  Indeed,  there  is  a 
great  inconsistency  in  the  cases  on  this  point.  In  general,  a 
part}'"  in  possession  of  certain  information  will  be  chargeable 
with  a  knowledge  of  all  facts  which  an  inquiry,  suggested  by 
such  information  prosecuted  with  diligence,  would  have  dis- 
closed to  him.^  Thus,  when  a  purchaser  has  notice  of  a  deed 
affecting  the  property  to  be  purchased,  this  is  sufficient  to  put 
him  on  inquiry,  and  he  is  presumed  to  have  notice  of  the  con- 
tents of  that  deed  and  of  all  other  deeds  to  which  it  refers.* 

Possession  of  land  by  one  whose  deed  is  not  registered  is 
notice  of  his  title,  whatever  such  title  may  be  worth,  and  is 
sufficient  to  put  a  subsequent  purchaser  on  inquiry.^  So,  also, 
the  possession  of  a  tenant  is  sufficient  notice  of  his  landlord's 
title  to  put  a  person  dealing  with  the  property  on  inquiry;^ 

1  As  where  a  stranger  to  the  title,  chaser  who  at  the  time  of  sale  is  in 
while  the  person  proposing  to  pur-  possession  of  facts  which  would  put 
chase  is  searching  the  records  for  in-  an  ordinarily  prudent  man  upon  in- 
formation, tells  him  there  is  some-  quiry,  as  to  the  existence  of  a  vend- 
thing  wrong  about  the  title,  but  or's  lien  upon  the  property  purchased, 
gives  no  names  or  other  facts  point-  will  be  held  to  take  subject  to  the 
ing  out  a  course  of  inquiry.  Slattery  lien.  Major  v.  Bukley,  51  Mo.  227; 
V.  Rafferty,  93  111.  277;  and  see  and  see  Clark  v.  Fuller,  39  Conn. 
Lamont  v.  Stimson,  5  Wis.  443;  Mul-  238. 
liken  v.  Graham,  72  Pa.  St.  484.  *  Green  v.  Early,  39  Md.  223. 

2Coxv.  Milner,  23  III.  476.  5  Warren  v.  Richmond,  53  111.  52; 

3  Wilson  V.  Hunter,  30  Ind.  466.  Perkins  v.  Swank,  43  Miss.  349;  Gal- 
One  who  "  knew  by  report "  when  he  ley  V.  Ward,  60  N.  H.  331;  Phillips 
purchased  land  that  there  was  a  v.  Costiey,  40  Ala.  486;  Sears  v.  Mun- 
mortgage  upon  it  is  chargeable  with  son,  23  Iowa,  380. 
notice  of  such  mortgage  if  a  valid  6  Edwards  v.  Thompson,  71  N.  C. 
one,  although  the  report  also  stated  177 ;  Cunningham  v.  Pattee,  99  Mass. 
that  such  mortgage  was  void.  Prin-  248 ;  Kerr  v.  Day,  14  Pa.  St.  1 12 ;  Con- 
gle  v.  Dunn,   37  Wis.  449.     A  pur-  lee  v.  McDowell,  15  Neb.  184. 


INVESTIGATING   THE   TITLE.  273 

and  the  law  will  charge  such  person  with  notice  of  all  the 
facts  which  lie  might  have  ascertained  by  using  proper  dili- 
gence in  inquiring.^  So,  also,  where  a  tenant  in  possession 
agrees  to  purchase  the  premises  his  possession  amounts  to  no- 
tice of  his  equitable  title  to  a  subsequent  grantee  of  his  land- 
lord.2  Possession  of  land  under  an  unrecorded  agreement  with 
the  owner  to  purchase  the  same  is  notice  sufficient  to  put  others 
on  inquiry,  and  if  they  buy  of  the  owner  the  contract  of  pur- 
chase may  be  enforced  against  them  in  equity.' 

It  has  been  held  that  a  ]iui'chaser  is  charged  with  notice 
that  his  grantor  held  by  what  equity  must  declare  to  be  an 
invalid  deed,  when  such  grantor  was  out  of  and  never  had 
been  in  possession,  and  others  had  controlled  the  property  in 
many  ways  for  years,  and  when  an  examination  of  the  regis- 
try of  deeds  would  have  shown  convcN'ances  inconsistent  with 
the  full  validity  of  the  deed  under  which  the  grantor  claimed. 
That  under  such  circumstances  the  duty  of  inquiry  is  impera- 
tive, and  the  facts  sufficient  to  put  a  prudent  man  on  his  guard. 
And  so  it  is,  perhaps,  in  nearly  every  case  where  the  vendee 
purchases  on  the  basis  of  a  merely  nominal  title.* 

Mere  rumors  are  not  notice,  nor  do  they  impose  upon  a  pur- 
chaser the  duty  of  inquiry.^  To  affect  him  the  information 
should  come  from  some  one  interested  in  the  estate,  or  from 
some  authoritative  source,^  and  should  be  of  such  a  character 
as  to  impress  a  prudent  person  with  the  duty  of  further  inves- 
tigation." To  set  on  foot  an  inquiry  into  the  foundation  of 
more  rumors  would,  in  most  cases,  be  a  vain  and  impracticable 
pursuit;^  and  unless  there  is  some  act  or  declaration  from  an 
authentic  source,  the  purchaser  will  not  be  held  to  the  duty  of 
inquiry,  nor  will  he  be  chargeable  with  dereliction  in  this  re- 
spect because  he  has  failed  so  to  do.' 

iQ'Rourke  V.  O'Cbnner,  39Cal.  442;  460;  Hall  v.  Livingstone,  3  Dol,  Cli. 

Dickey  V.  Lyon,  11)  Iowa,  .■")44.  348;  Shepard   v.  Shopurd,   36   Midi. 

2Coari  v.  Olsen,  91  III.  273.  173;  Butler  v.  Stevens,  26  Me.  484. 

3  Moss   V.    Atkinson,    44   Cal.    317;        •>  Satterfield  v.  Malone,  35  Fed.  Rep. 

Strickland  v.  Kirk,  51  Miss.  795;   but  445;  Mulliken  v.  Graham,  72  Fa.  St. 

see  Rogers  v.  liussey,  36  Iowa,  664.  484. 

•«  Kiia|>p  v.  Bailey,  79  Me.  195.  'Chicago  v.  Witt.  75  111.  211. 

sChurciier   v.  (Juernsey.  39  Pa.  St.        «Maul  v.  Rider,  59  Ba.  St.  107. 
86;  Hottenstein  V.  Lerch,  104  Pa.  St.       » See    Curtis    v.    Muudy,    3    Met. 
18 


274  INCIDENTS    OF    TIIK    CONTRACT. 

§  8.  Notice  from  registration.  In  the  United  States  it 
has  been  uniformly  held  that  the  record  of  a  conveyance  exe- 
cuted in  conformity  to  law  operates  as  constructive  notice  to 
all  subsequent  purchasers  and  incumbrancers  claiming  under 
the  same  grantor  of  an}'-  estate,  either  legal  or  equiiable,'  in 
the  same  property,  provided  the  conveyance  be  one  which  the 
law  requires  or  authorizes  to  be  recorded.^ 

The  doctrine  of  constructive  notice  under  registration  laws 
has,  however,  always  been  regarded  as  a  harsh  necessity,  and 
the  statutes  which  create  it  have  always  been  subjected  to  the 
most  rigid  construction.*  Hence  only  the  facts  as  they  appear 
on  the  face  of  the  record  are  deemed  binding  on  subsequent 
purchasers;  and  if  from  any  cause  the  real  facts  are  there 
misstated  —  as  if  the  wrong  land  is  by  mistake  described,  or  the 
sum  for  which  a  mortgage  is  given  is  omitted  or  incorrectly 
recorded  — a  subsequent  purchaser  in  good  faith,  relying  upon 
what  is  shown,  will  not  be  affected  by  the  error  or  omission.'* 
There  is  a  line  of  cases  in  apparent  conflict  with  this  doctrine, 
so  far  at  least  as  respects  errors  occurring  in  transcription  and 
occasioned  by  the  neglect  of  the  recording  officer;^  but  the 
general  doctrine  is  as  first  stated. 

Again,  the  old  doctrine  that  the  record  of  a  deed  is  con- 
structive notice  to  all  the  world  has  been  expressly  denied  in 
recent  cases,  and  the  rule  has  been  laid  down  that  such  record 
is  constructive  notice  only  to  those  who  are  bound  to  search 
for  it  —  as  subsequent  purchasers  and  incumbrancers,  or  others 
who  deal  with  or  on  the  credit  of  the  title  in  the  line  of  which 

(Mass.)  405;  Rogers  v.  Hoskins,    14       3  chamberlain  v.  Bell,  7  Cal.  292. 
Ga.  166:  Van  Duyne  V.  Vreelancl,  12       •*  Sanger  v.    Craigul,    10    Vt.    555; 

N.  J.  Eq.  142.  Frost  v.  Beekman,  1  Jobns.  Ch.  (N. 

iThe  earlier  cases  held  that  the  re-  Y.)  288;  Chamberlain  v.  Bell,  7  Cal. 

cording  acts  did  not  contemplate  con-  292;  Terrell  v.   Andrew  County,  44 

veyances  of  equitable  rights  or  in-  Mo.  309;  Pringle  v.  Dunn,  37  Wis. 

terests,  and  consequently  that  record  465;  Barnard  v.   Campau,  29  Mich, 

of  such  a  conveyance  would  not  be  164;  Miller  v.  Bradford,  12  Iowa,  14; 

notice ;  but  this  position  has  long  been  Peck  v.  Mallams,  10  N.  Y.  519 :  Dean 

abandoned.  v.  Anderson,  34  N.  J.  Eq.  508. 

-Tilton    V.    Hunter,    29     Me.    29;       5  gee  iH/m,  "  Registration,"  where 

Crockett    v.    McGuire,    10    Mo.    34;  the  subject  is  discussed  and  the  au- 

Meni  v.  Rathbone,  21  Ind.  454;  Irvin  thorities  on  either  side  collated. 
V.   Smith,  17  Ohio,  226;  Mallory  v. 
Stodder.  6  Ala.  801. 


INVESTIGATING    THE   TITLE.  275 

the  recorded  deed  belongs.'  "Hut  strangers  to  the  title  are  in 
no  wa}'  affected  by  the  record.- 

§  9.  Recitals  in  deeds.  The  recitals  in  a  deed  in  the  chain 
of  title  are  such  notice  to  a  purchaser  as  would  put  him  on  in- 
quir}'  as  to  the  nature  and  extent  of  the  matters  referred  to  in 
the  recitals,^  and  all  persons  dealing  with  the  property  are 
bound  at  their  peril  to  take  notice  of  the  facts  as  stated;*  but 
the  recitals  in  a  deed  of  a  fact  which  may  or  may  not,  accord- 
ing to  circumstances,  amount  to  fraud  will  not  affect  a  pur- 
chaser for  a  valuable  consideration  tlenying  actual  notice  of 
the  fraud;  nor  will  circumstances  amounting  to  mere  suspicion 
be  deemed  notice.' 

Again,  while  the  rule  that  if  a  purchaser  of  land  has  knowl- 
edge of  any  facts  sufficient  to  put  a  prudent  man  on  inquiry, 
which,  if  prosecuted  with  ordinaiy  diligence,  would  lead  to 
actual  notice  of  some  rights  or  title  in  conflict  with  that  he  is 
about  to  purchase,  the  law  presumes  he  made  the  inquiry  and 
will  charge  him  with  the  notice  he  would  have  received  if  he 
had  made  it,  applies  with  particular  force  to  statements  and 
recitals  in  deeds,  yet  such  rule  does  not  require  anything  more 
than  ordinary  prudence  and  diligence  on  the  part  of  the  pur- 
chaser, and  cannot  be  extended  by  implication  to  charge  facts 
not  stated  or  afford  constructive  notice  of  matters  entirely  dis- 
connected with  the  subject  of  the  recitals.® 

1  Maul   V.    Rider,   59  Pa.    St.    167 ;  or  persons  claiming  from  the  parties 

Straight  v.  Harris,  14  Wis.  509 ;  Bir-  b}'  title  anterior  to  tlie  date  of  the  re- 

nie  V.  Main,  29  Ark.  591 ;  Iglehart  v.  citing  deed.     Carver  v.  Aster,  4  Pet. 

Crane,  42  111.  261 ;  McCabe  v.  Grey,  (U.   S.)   1 ;  Crane   v.  Morris,    6  Pet. 

20  Cal.  509;  Hoy  v.  Brainhall,  19  N.  (U.  S.)  598. 

J.  Eq.  563.  5  Munn  v.  Burgess.  70  111.  604. 

^Maul  V.  Rider,  59Pa.  St.  167.  eXhus,   where  the  vendor's    deed 

« Chicago,   etc.    R.  R.   Co.  v.  Ken-  refers  to  an  incumbrance  upon  the 

nedy,  70  111.  350;  Deason  v.  Taylor,  land,  the  fact  that  the  incumbrance 

53   Miss.  697;  IMorrison  v.  Morrison,  described   was  discharged  upon  the 

38  Iowa,  73.  record  prior  to  the  execution  of  such 

••iEtualns.  Co.  v.  Corn,  89  111.  170;  deed  is  not  sufficient  to  charge  a  pur- 
White  V.  Kibby,  42  111.  510.  Techni-  chaser  with  constructive  notice  of 
cally  speaking,  a  recital  of  one  deed  the  existence  of  another  and  entirely 
in  another  operates  as  an  estoppel  different  lien  which  nowhere  api>ear3 
iiiiJ  binds  parties  and  privies.  But  of  record  as  a  charge  upon  the  prem- 
it  does  not  bind  strangers  who  claim  ises;  although  the  reference  in  the 
by  title  paramount  to  the  deed,  or  deed  was,  by  mistake,  to  the  incum- 
persons  claiming  by  an  adverse  title,  brance  previously  discharged,  instead 


276  INCIDENTS    OF    THE    CONTRACT. 

§  10.  Inquiries  iu  pais.  As  previously  remarked,  a  pur- 
chaser is  bound  to  exercise  due  diligence  in  the  prosecution  of 
all  inquiries  that  ma}'^  be  suggested  by  any  fact  brought  to  his 
knowledge,  and  in  the  discharge  of  such  duty  must  make  in- 
quiries iii  pais  as  well  as  examine  records.^  Thus,  one  who  has 
notice  of  a  prior  unrecorded  deed  is  not  at  liberty  to  rel^"-, 
without  further  inquiry,  upon  a  search  of  the  records,  and  the 
fact  that  no  such  deed  is  found  recorded;  and  one  who  pur- 
chases with  such  notice  and  upon  such  search  is  not  entitled 
to  be  considered  a  hotia  fide  purchaser.^ 

§  11.  Notice  of  unrecorded  instruments.  The  rule  is  that 
whatever  is  sufficient  to  put  a  purchaser  upon  inquiry  is  good 
notice  of  all  facts  which  the  inquiry  would  have  disclosed. 
Hence,  where  a  purchaser  of  land  is  in  the  possession  of  cer- 
tain knowledge  or  information  calculated  to  induce  inquiry  he 
will  be  held  to  a  high  degree  of  care  in  making  his  investiga- 
tion of  title,  and  be  charged  with  constructive  notice  of  the 
facts  which  he  might  have  ascertained.  Thus,  if  he  knows  at 
the  time  of  his  purchase  that  another  person  has  for  years 
claimed  the  land  and  paid  taxes  thereon,  it  is  his  duty  before 
making  his  purchase  to  go  to  such  claimant  and  ascertain  from 
him  what  title  he  has;  and  if  he  fails  to  make  such  inquiry  the 
rule  as  first  stated  applies,  and  he  will  hold  subject  to  the  equit- 
able rio-hts  of  the  claimant  under  an  unrecorded  instrument.^ 

An  unrecorded  deed  is  as  effective  to  transfer  title  as  though 
recorded,  and  subsequent  purchasers  who  take  with  notice  hold 
in  subordination  thereto.* 

§  12.  Notice  of  parol  agreements.  Actual  possession  of 
land  under  a  parol  agreement  for  purchase  is  notice  to  all  per- 
sons dealing  with  it  of  whatever  rights  the  possessor  has  in  it; 
and  a  person  buying  the  same  from  the  holder  of  the  legal  title 
will  be  treated  the  same  as  his  grantor,  and  be  subject  to  the 

of  to  the  one  subsisting  at  the  execu-  -  Shotwell    v.    Harrison,  30  Llich. 

tion  of  the  deed.     Cambridge  Bank  179. 

V.  Delano,  48  N.  Y.  326;  and  see  3  Redden  v.  Miller,  95  III.  336. 
Muller  V.  Engelin,  12  Bush  (Ky.),  Olaupin  v.  Emmons,  47  Mo.  304; 
441,  Finch  v.  Beal,  68  Ga.  594;  Brinkman 
1  Russell  V.  Sweezey,  23  Mich.  235 ;  v.  Jones,  44  Wis.  498;  Lawton  v. 
Pringle  v.  Dunn,  37  Wis.  449;  Little-  Gordon,  37  Cal.  202;  Wilson  v.  Hun- 
ton  V.  Giddings,  47  Tex.  109.  ter,  30  Ind.  466;  Lamb  v.  Pierce,  113 

Mass.  72. 


INVESTIGATING    TIIK    TITLi:.  277 

same  duties  and  burdens.'  Hut  this  rule  onl}'  applies  where 
there  is  a  visible,  open  and  exclusive  possession  coupled  with 
the  other  incidents;  and  actual  notice  of  a  ])rior  parol  agree- 
ment to  sell,  where  the  first  purchaser  is  not  in  possession 
under  his  contract,  amounts  to  nothing,  as  the  subsequent  sale 
and  conveyance  is  a  repudiation  of  the  prior  contract  under 
the  statute  of  frauds,  and  renders  tiie  prior  sale  void.- 

§  Hi.  Notice  of  fraud.  A  purchaser  of  land  will  be  pre- 
sumed to  have  examined  the  title;  and  if  there  was  anything 
in  any  link  of  the  chain  of  title  showing  fraud,  or  such  circum- 
stances as  would  |nit  a  prudent  man  on  inquiry  for  fraud,  he 
will  be  charged  with  notice  of  fraud  if  any  existed.'' 

§  14.  Possession  as  an  evidenci'  of  title.  Every  purchaser 
is  charged  with  the  duty  of  exercising  diligence  in  making 
proper  examinations  touching  the  rights  and  equities  of  others, 
and  must  be  presumed  to  investigate  the  title  not  only  as  it 
may  be  shown  of  record,  but  by  inquiries  in  pais  as  well.* 
Actual  possession,  and  the  use  and  occupation  of  land,  fur- 
nishes notice  sufficient  to  put  all  intending  purchasers  on  in- 
quiry as  to  the  rights  or  claims  of  the  possessor  thereof;^  and 
when  the  location  is  such  as  to  render  personal  ap[)lication  to 
and  inquiry  of  the  occupant  practicable,  a  purchaser  failing  to 
do  so  is  no  more  entitled  to  be  regarded  as  a  purchaser  in 
good  faith  than  if  he  had  inquired  and  ascertained  the  real 
facts  in  the  case.®    Yet  the  protection  which  the  registry  law 

1  Webber  v.  Curtiss,   104  111.  309 ;  sey  v.  Hubbard,  18  Fla.  688 ;  Killey 

Bartling  v.  Brasulin,  102  111.  441.  v.  Wilson,  33  Cal.   090 ;  Tankard  v. 

2Pickerellv.  Morss,  97  IH.  220.  Tankard,  79  N.  C.   54;  Glidewell  v. 

SHunter  V.  Stoneburner,  92  111.  75;  Spaugli,   26  Ind.   319;  Wcstbrook  v. 

but  see  Munn  v.  Burgess,  70  111.  604.  Gleason,  79  N.  Y.  23;  Groff  v.  Ram- 

<  Littleton  v.  Giddings,  47  Tex.  109;  sey,  19  Minn.  44. 
Russell    V.    Sweezy,    22    Midi.    235;       «  Pell  v.  McElroy,  36  Cal.  272 ;  Will- 
Warren  v.  Riclimond,  53  111.  52.  iamson   v.    Brown,    15    N.    Y.    355; 

5  Greer  v.  Higgins,  20  Kan.  420;  Moyer  v.  Hiinnan,  13  N.  Y.  189; 
Median  v.  Williams,  48  Pa.  St.  241;  Buck  v.  Ilolloway,  2  J.  J.  Marsh. 
Cabeen  v.  Buckenridge,  48  111.  91 ;  (Ky.)  180.  Yet  while  the  open  and 
Honiniel  v.  Devinne}',  39  Midi.  522;  actual  possession  of  land  alToids  pub- 
Hawley  V.  Morse,  32  Mo.  287;  Pinney  lie  notice  of  the  occupant's  claim, 
V.  Fellows,  15  Vt.  525;  Perkins  v.  one  who  on  inquiring  of  the  occu- 
Swank,  43  Miss.  349;  Galley  V.  Ward,  pant  receives  no  information  from 
60  N.  H.  331 ;  Phillips  v.  Castly,  40  him  is  not  ordinarily  chargeable  with 
Ala.  486;  Sears  v.  Munson,  23  Iowa,  notice  of  his  etjuities.  Cavin  v.  Mid- 
380;  Cox  V.  Prater,  67  Ga.  588;  Mas-  dleton,  63  Iowa,  618. 


278  INCIDENTS    OF   THE   CONTKAOT. 

gives  to  those  taking  titles  or  security  upon  land  upon  the 
faith  of  the  records  should  not  be  destroyed  or  lost,  except 
upon  clear  evidence  showing  want,  of  good  faith  in  the  party 
claiming  their  protection,  and  a  clear  equity  in  him  who  seeks 
to  establish  a  right  in  hostility  to  the  record  title.  Slight  cir- 
cumstances or  mere  conjecture  should  not  suffice  to  overthrow 
the  title  of  one  who  buys  with  reliance  upon  the  record  title; 
and  to  effect  such  a  result  there  should  be  ample  proof  of  prior 
title  or  prior  equities  or  circumstances  tending  to  prove  such 
prior  rights,  which  affect  the  conscience  of  the  subsequent 
purchaser.  Actual  notice  of  itself  impeaches  the  subsequent 
conveyance,  while  proof  of  circumstances,  short  of  actual  no- 
tice, which  should  put  a  prudent  man  upon  inquiry  will  author- 
ize an  inference  of  notice  sufficient  to  rebut  any  presumption 
of  good  faith.  AVith  respect  to  the  character  of  possession 
which  is  sufficient  to  put  a  person  upon  inquiry,  and  which 
will  be  equivalent  to  actual  notice  of  rights  or  equities  in  per- 
sons other  than  those  having  a  title  of  record,  it  is  well  estab- 
lished by  an  unbroken  current  of  authority  that  such  posses- 
sion and  occupation  must  be  actual,  open  and  visible;  it  must 
not  be  equivocal,  occasional  or  for  a  special  or  temporary 
purpose;  neither  must  it  be  consistent  with  the  title  of  the 
apparent  owner  of  record.^  All  the  cases  agree  that  notice 
will  not  be  imputed  to  a  purchaser  except  where  it  is  a  reason- 
able and  just  inference  from  visible  facts;  and  these  can  only 
exist  where  there  is  an  exclusive  possession,  actual  and  dis- 
tinct, and  manifested  by  such  acts  of  ownership  as  would  nat- 
urally be  observed  and  known  by  others.^ 

In  conformity  to  the  foregoing  principles  the  doctrine  of 
constructive  notice  will  not  apply  to  unimproved  lands;'  nor  to 
cases  where  the  possession  is  ambiguous  or  liable  to  be  mis- 
understood;* nor   to  an  uninhabited  or  unfinished  dwelling- 

1  Brown  v.  Volkening,  64  N.  Y.  76 ;  the  limitation  laws ;  but  it  is  not  nec- 
Norcross  v.  Widgerly,  2  Mass.  508;  essary  that  it  should  have  all  the 
Colby  V.  Kennistou,  4  N.  H.  262.  characteristics  of  an  adverse  posses- 

2  Brown  v.  Volliening,  64  N.  Y.  76;  sion.  Smith  v.  Heirs  of  Jackson,  79 
Patten  v.  Moore,  32  N.  H.  382.     The  111.  254. 

possession  of  land,  to  afford  notice  of  3  White  v.  Fuller,  38  Vt.  201. 

the  party's  rights,  must  be  as  open,  ^  Patton  v.  Moore,   32  N.  H.  382 ; 

notorious  and  exclusive  as  is  required  Loughridge  v.  Borland,  52  Miss.  546. 

to  constitute  adverse  possession  under  Actual  residence  on  land  is  the  best 


INVESTIGATING    TJIE    TITLE.  279 

house;'  and  it  has  been  held  that  the  use  of  lands  for  pastur- 
age or  for  cutting  of  timber  is  not  such  an  occupancy  as  will 
charge  a  ])urchaser  or  incuinbi-uncer  with  notice."  The  general 
rule  is  that,  when  hind  is  vucaut  or  unoccupied,  no  presump- 
tion can  arise  against  the  legal  title.' 

There  are  a  few  cases  which  seem  to  hold  strongly  against 
the  doctrine  of  constructive  notice  arising  from  possession 
merely,*  though  admitting  such  to  be  competent  for  the  con- 
sideration of  a  jur}'  in  connection  with  direct  evidence  of  act- 
ual notice;  but  the  great  preponderance  of  authority  sustains 
the  principle  that  a  purchaser  from  the  record  owner  is  bound 
to  notice  the  possession  of  another,  and  takes  subject  to  the 
right  indicated  b}'  such  possession. 

In  ever}'  instance,  therefore,  the  safe  course  is  to  make  the 
inquiry,  for  the  law  will  not  extend  its  protection  to  those  who 
throufrh  ncfrli^ence  or  inattention  suffer  an  advantage  to  be 
taken  of  them;  and  while  a  purchaser  of  land  who  examines 
the  records  is  protected  b}^  them  so  far  as  they  can  protect 
him,  yet  he  necessarily  takes  the  risk  of  having  the  actual 
state  of  the  title  correspond  with  that  which  appears  of  record.' 
The  importance  of  the  inquiry  cannot  be  overestimated  in 
cases  where  a  long  interval  exists  between  the  time  of  acquir- 
ing title  and  its  divesture  of  record.  In  some  cases  seven 
years,  and  in  all  cases  twenty  years,  will  be  sufficient  to  bar  an 
apparent  title  of  record  when  adverse  rights  have  been  ac- 
quired by  proper  legal  methods;  and  continuous  possession  is 

notice  to  adverse  claimants  that  the  J.  Eq.  419;  and  see  Fassett  v.  Smith, 

land  is  being  held  and  used  by  the  23  N.  Y.  252 ;  Thompson  v.  Burhans, 

occupant     as    his    own.     Martin    v.  79  N.  Y.  93. 

Judd,  81  111.  488.     But  facts  indica-  3  White  v.  Fuller,  38  Vt.  201.     The 

tive  of  a  clain\  of  ownership  may  be  person  having  the  legal  title  is  al- 

considered  with  other  circumstances  ways    in    law    in    the    constructive 

where  there  is  no  actual  residence:  possession  of  the  land,  unless  he  has 

tlius,  the  fact  that  the  partj'  claim-  become    disseized.      Thompson      v. 

iiig  title  had  laid  a  sidewalk  is  one  Burhans,  79  N.  Y.  93. 

proper  to  be  considered  in  connection  ■*  Pomeroy     v.    Stevens,    11     Met. 

with    other     marks    of    ownership.  (Mass.)  244;    Glass  v.    Hurlbut,  102 

Hatch  V.  Bigelow,  39  111.  546.  Mass.  34 ;  Clark  v.  Bosworth,  51  Me. 

1  Brown  v.  Volkening,  64  N.  Y,  76.  528. 

2McMechan  v.    Griffing,   3    Pick.  *  Peck  v.  Clapp,  98  Pa.  St.  581. 
(lMas3.)149;  Holmes  v.  Stout,  10  N. 


280  INCIDENTS    OF   THE    CONTRACT. 

almost  as  essential  a  showing  as  unbroken  continuity  of  record 
title. 
g  15.  Continued — Possession  of  prior  vendors.     It  has 

been  held  that  the  rule  which  provides  that  possession  of  land 
is  notice  to  a  purchaser  of  the  possessor's  title  does  not  apply 
to  a  vendor  remaining  in  possession  so  as  to  require  a  pur- 
chaser from  his  grantee  to  inquire  whether  he  has  reserved 
any  interest  in  the  land  conveyed,  and  that,  so  far  as  the  pur- 
chaser is  concerned,  the  vendor's  deed  is  conclusive  on  that 
subject.^  So,  too,  it  has  further  been  held  that  the  continued 
use  and  occupation  by  a  grantor  of  lands  which  he  had  previ- 
ously conveyed  is  not  evidence  that  his  possession  is  adverse 
lo  his  grantee ;  on  the  contrary,  his  possession  is  deemed  to  be 
under  and  in  subordination  to  the  legal  title  held  by  his 
grantee,  and  that  he  is  estopped  by  his  deed  from  claiming 
that  his  holding  is  adverse,  and  that  this  rule  applies  to  all 
subsequent  grantees  of  such  grantor.^ 

TJncloubtedly  the  general  rule  is  that  the  possession  of  a 
grantor  is  not  adverse  to  his  grantee,  and  that  the  grantor  and 
all  claiming  under  him  by  a  title  acquired  subsequent  to  the 
grant  are  estopped  from  denying  the  grantee's  title.  Yet 
this  is  a  most  unsafe  rule  for  intending  purchasers  to  rely  upon, 
for  many  circumstances  may  intervene  to  prevent  its  applica- 
tion. In  a  number  of  instances  grantors  who  had  conveyed 
by  quitclaim  deed  only  by  remaining  in  possession  of  the 
property  and  asserting  a  hostile  claim  have  been  permitted 
to  acquire  a  title  against  their  grantees  by  virtue  of  the  statute 
of  limitations;^  while  some  courts  have  held  that  a  grantor 
with  w^arranty  may,  subsequent  to  the  delivery  of  his  grant, 
originate  an  adverse  possession,  and  is  not  estopped  from  assert- 
ing the  same  by  the  covenant  of  warranty.^  So,  too,  equitable 
circumstances  may  prevent  the  operation  of  the  rule,  as  where 
a  deed  had  been  delivered  in  escrow  until  the  price  should 

iVan  Kuren  v.  R.  R.  Co.  38  N.  J.  65  Miss.  323;  Cook  v.  Travis,  20  N. 
L.  165 ;  and  see  Abbott  v.  Gregory,    Y.  400. 

29  Mich.  68;  Bloomer  v.  Henderson,  2  Schwallback  v.  R.  R.  Co.  69  Wis. 
8  Mich.    395;    Newhall  v.    Pierce,    5   292. 

Pick.  (Mass.)  450 ;  Hafter  v.  Strange,       3  Borland  v.  Magilton,  47  Cal.  485. 

4  Sherman  v.  Kane,  86  N.  Y.  57. 


INVESTIGATING   THE   TITLE.  281 

have  been  paid  by  the  grantee  was  put  on  record  in  violation 
of  the  agreement,  it  -was  held  that  the  possession  of  the  gran- 
tor was  constructive  notice  to  a  subsequent  purchaser  from 
his  grantee  of  all  his  rights  and  equities  in  the  land.^  In  any 
event  it  would  seem  that  possession  of  a  prior  vendor  cannot 
with  safety  be  ignored,  even  though  he  may  have  conveyed 
with  warranty ;  and  where  he  continues  to  occupy  the  premises 
the  better-sustained  rule  would  seem  to  be  that  all  persons  ac- 
(juiriug  title  from  his  grantee  are  charged  with  notice  of  the 
claim  of  the  grantor  and  of  his  equitable  rights.- 

§  1 6.  Liens  and  incumbrances.  If  a  party  purchases  and 
obtains  a  conveyance  of  land,  having  no  notice,  actual  or 
constructive,  of  prior  liens  and  incumbrances,  he  takes  the  land 
free  from  the  same;'  on  the  other  hand,  a  party  having  notice 
of  such  facts  as  would  put  a  prudent  person  on  inquirv  is  charge- 
able with  notice  of  other  facts  to  which  by  diligent  inquiry 
and  investi'j:ation  he  would  have  been  led.*  If  he  takes  a  con- 
veyance  with  notice  of  a  prior  mortgage  he  of  course  holds 
subject  to  the  mortgage,  and  the  land  in  his  hands  is  charged 
with  its  payment  the  same  as  if  no  convcN'ance  had  been 
made.' 

§  17.  Mortgages.  The  attention  of  every  person  making 
an  examination  of  title  is  usuall}'  directed  toward  the  ascertain- 
ment of  the  fact  of  the  existence  of  incumbrances  upon  the 
property  by  way  of  mortgage.  The  means  of  information  in 
all  ordinary  cases  is  the  public  records,  for  the  registry  of  a 
mortgage  is  notice  to  all  subsequent  purchasers  and  incum- 
brancers of  the  lien  created  thereby."  There  are  cases  which 
hold  that  a  mortgagee  having  deposited  his  mortgage  for  rec- 
oi'd  has  thereby  discharged  his  full  duty  in  resjiect  to  giving 
notice  of  his  lien  and  his  rights  thereunder,  and  is  not  affected 
by  any  mistakes  of  the  clerk  in  transcribing;  but  the  better 

1  Bank  v.  Godfrey,  23  111.  579.  3  Dunlap  v.  Wilson,  32  111.  517. 

■iWhitev.  White,  89  111.  460;  Ford  <  Bent    v.    Coleman,   89    111.    364; 

V.     Marcall,     107    111.    136;    Pell    v.  George  v.  Kent,  7   Allen  (Mass. ),  16. 

■McElroy,36Cal.  268;  Webster  V.  Mad-  »  Dunlap    v.    AVilson,   32    111.  517; 

dox,  6  Me.  256;  Wright  v.  Bates,  13  Martin  v.  Cauble,  72  Ind.  67. 

Vt.   341;  McKecknie   v.  Hoskins,  23  « Dunlap    v.    Wilson,    32    111.  517; 

Me.  230;    Hopkins  v.   Garrard,  7  K  Martin  v.  Cauble,  72  Iml.  07. 
Mon.    (Ky.)  312 ;  Eylar  v.   Eylar,  60 
Tex.  315. 


2S2  INCIDENTS    OF   THE   CONTRACT. 

and,  indeed,  prevailing  doctrine  is  that  a  subsequent  purchaser 
is  not  bound  to  observe  errors  of  this  character,  and  that  as  to 
him  the  registry  is  notice  of  the  tenor  and  effect  of  the  instru- 
ment only  as  it  appears  upon  the  record.'  Hence,  he  is  af- 
fected only  as  to  the  amount  of  the  lien  debt  as  mentioned  in 
the  record ;  -  and  the  land  in  his  hands,  where  the  purchase  is 
made  in  good  faith  and  without  notice  from  other  sources, 
will  be  charged  only  with  the  amount  expressed  on  such  rec- 
ord.' 

§  18.  Judgment  liens.  After  the  registry  of  conveyances 
the  next  field  for  investigation  is  the  court  records  of  unsatis- 
fied and  subsisting  judgments.  This  search  is  of  primary  im- 
portance, and  is  a  precaution  that  can  never  safely  be  dispensed 
with  in  an  examination  of  title.  The  matter  of  judgment 
liens  is  purely  statutory;  for  judgments  were  not  liens  upon 
lands  at  common  law,*  and  their  efficacy,  extent  and  duration 
are  measured  entirely  by  the  statute  which  creates  them. 

The  law,  with  respect  to  judgments  and  the  effect  to  be 
given  to  them  in  connection  with  the  rights  or  claims  of  per- 
sons not  parties  thereto,  is  not  the  same  in  all  of  the  states. 
In  many  states  the  doctrine  that  the  general  lien  of  a  judg- 
ment upon  land  is  subject  to  any  and  all  adverse  equities  or 
claims,  whether  secret  and  unknown,  or  recorded  and  known, 
prevails;  and  a  previousl3'-acquired  equitable  interest  in  lands 
has  priority  over  the  lien  of  a  judgment  against  the  holder  of 
the  legal  title.^    A  purchaser  of  such  interest  would  undoubt- 

1  Stevens  v.  Hampton,  46  Me.  404;  (13  Eclw.  I.  ch.  18),  a  statute,  usually 

Barnard  v.  Campau,  29  Mich.   164;  called  the  statute  de  mereatoribus. 

Miller  v.  Bradford,  12  Iowa,  14 ;  Kil-  was  enacted  which  authorized  the 

Patrick  v.  Kilpatrick,  23  Miss.  124.  judgment  creditor  to  sue  out  the  writ 

2 Terrell  v.  Andrew  Co.  44  Mo.  309 ;  of  elegit,  by  which  the  sheriff  was  re- 
Peck  v.  Mallams,  10  N.  Y.  519;  Dean  quired  to  have  all  of  the  debtor's 
V.  Anderson,  34  N.  J.  Eq.  508.  goods  liable  to  execution  appraised 

s  Luch's  Appeal,   44  Pa.    St.    519;  and  delivered  to  the  creditor  in  satis- 

Miller  v.  Bradford,  12  Iowa,  14;  Gil-  faction  of  his  debt,  and  if  insufficient 

Christ  V.  Gough,  63  Ind.  589.  for  the  purpose  to  deliver  to  him  a 

*  At  common  law  a  judgment  ere-  moiety  of  his  freehold  estate  until  he 

ated  no  lien  on  real  estate,  nor  could  sliould  have  execution  of  his  judg- 

it  be  sold  on  execution.     But  as  trade  ment.     This  it  was  lield  created  a  lien 

developed,  it  was  necessary  to  subject  on  the  real  estate  of  the  debtor  from 

land  to  the  payment  of  debts;  and  the  test  of  the  writ, 

accordingly,  in  the  reign  of  Edward  I.  s  Jones  v.  Ehoads,  74  Ind.  510. 


INVESTIGATING    TIIK   TITLE.  2S3 

ccll\-  be  entitled  to  protect i(jn  where  no  bad  faith  interfered 
to  vitiate  the  transaction ;  but  one  who  takes  title  to  land  ap- 
parently perfect  of  record,  and  which  seems  of  record  to  be, 
as  in  fact  at  law  it  is,  subject  to  the  lien  of  a  judgment,  can- 
not afterwards,  upon  learning  tiiat  unrecorded  deeds  have 
been  made,  be  allowed  to  claim  title  throu":h  tiiem  in  order 
to  defeat  the  lien  of  the  judgment,  when  at  the  time  of  his 
purchase  he  had  no  knowledge  of  the  existence  of  the  deeds, 
and  suj)posed  he  was  getting  the  title  as  it  appeared  of  rec- 
ord.^ 

A  purchaser  of  land  with  knowledge  that  it  is  subject  to  a 
judgment  lien  is  not  a  hona  fide  purchaser.'- 

§  10.  Decrees.  A  decree  being  a  matter  of  public  record, 
a  third  person,  having  purchased  of  one  of  the  parties  to  the 
record,  is  ])resumed  to  have  done  so  with  full  knowledge  of 
the  decree.' 

§  20.  Mecliauics'  liens.  Aside  from  the  actual  or  construct- 
ive notice  furnished  by  a  lis  pendens^  the  subject  of  which 
has  been  sufficiently  considered,  a  party  purchasing  premises 
on  which  buildings  are  in  process  of  erection  having  knowl- 
edge of  the  same  is  bound  to  observe  this  fact,  and  to  make 
inquiry  as  to  the  rights  of  parties  furnishing  materials  or 
performing  Avork  thereon ;  and  such  person  is  charged  with 
constructive  if  not  actual  notice  of  their  lien.^  The  general 
doctrine  of  mechanics'  liens  provides  that  the  lien  shall  take 
effect  from  the  time  of  the  commencement  of  the  work,  and 
that  no  sale  or  transfer  thereafter  is  sufficient  to  divest  it.* 

1  McAlpine  v.  Hedges,  21  Fed.  Rep.        ^Loomis  v.  Riley,  2-1  111.  307. 

689.  •»  Austin  v.  Woiiler,  5  111.  App.  300. 

2  Cox  V.  Prater,  67  Ga.  588;  but  ^Dunklee  v.  Crane,  103  Mass.  470; 
see  Danielly  v.  Colbert,  71  Ga.  218.  Thielinan  v.  Carr,  75  111.  385;  Mehan 
The  statute  has  an  important  bearing  v.  Williams,  2  Daly  (N.  Y.),  367.  A 
upon  these  matters :  thus,  in  Georgia,  mechanic  may  file  his  lien  against 
a  hona  fide  purchaser  of  real  estate  the  person  who  held  the  legal  title 
for  a  valuable  consideration,  who  re-  when  the  work  was  commenced,  and 
tains  open  and  undisturbed  posses-  he  is  not  bound  to  inquire  further  or 
sion  for  four  years,  holds  the  land  take  notice  of  any  subsequent  con- 
discharged  from  the  lien  of  a  judg-  veyances  of  the  property.  Fourth 
mcnt  against  his  vendor,  although  Ave.  Church  v.  Schreiner,  88  Pa.  St. 
he  had  actual  notice  of  the  judgment    124. 

at  the  time  of  the  purchase.  Sanders 
V.  McAflfee,  42  Ga.  250. 


284:  INCIDENTS    OF    THE    CONTRACT. 

§21.  Yt'iulors'  liens.  In  the  absence  of  an  agreement  to 
the  contrary,  the  vendor  retains  a  lien  on  the  lands  for  the  un- 
paid j)urcliase  monej,  notwithstanding  he  has  made  an  abso- 
lute conveyance  in  fee  to  the  vendee  and  put  liini  in  posses- 
sion.' A  purchaser  from  the  vendee,  with  notice  of  the 
vendor's  equitable  lien  for  purchase  money,  will  be  charged 
with  the  same  trust  as  the  vendee;-  but,  although  the  vendee 
holds  the  vendor's  deed,  reciting  full  payment  of  the  purchase 
mone}',  yet  one  dealing  with  the  vendee  with  reference  to 
such  land,  with  knowledge  that  the  purchase  money  is  not 
fully  paid,  is  put  on  inquiry  as  to  the  amount  due  the  vendor, 
which  would  lead  to  the  ascertainment  of  the  extent  of  the 
lien,  if  not  waived;  or,  if  waived,  of  the  securit}'^  which  the 
vendor  had  taken  in  lieu  of  it;  and  if  such  purchaser,  being 
thus  put  on  inquiry,  fails  to  make  proper  investigation,  relying 
on  the  vendee's  statement  or  otherwise,  he  cannot  claim  pro- 
tection against  the  enforcement  of  the  vendor's  equitable  lien,' 
or  against  a  mortgage  on  the  lands,  executed  b}'  the  vendee  to 
the  vendor  to  secure  the  payment  of  the  purchase  money, on 
the  ground  of  want  of  actual  notice  of  its  existence.*  So,  also, 
if  the  deed  recites  that  the  sale  is  made  on  credit,  a  subsequent 
purchaser  is  bound  to  inquire  whether  the  purchase  monej'^  has 
been  paid;  and,  notwithstanding  that  the  time  for  payment  as 
stated  in  the  deed  has  passed,  there  is  no  presumption  that  it 
has  been  paid.  Such  a  recital  is  a  sufficient  notice  to  induce 
inquiry,  and  must  be  regarded  as  notice. 

Where  the  subject  of  the  purchase  is  only  an  equity,  a  still 
stronger  case  is  presented ;  and  the  fact  that  a  vendor  of  lands 
holds  only  a  bond  for  title  is  sufficient  to  charge  the  pur- 
chaser from  him  with  notice  of  the  previous  vendor's  lien  for 
unpaid  purchase  money .^ 

J  The  lien  is  not  of  universal  ob-  tends  to  give  notice  or  informs  a 

servance.     See  "Ven  dor's  Lien,"  party  that  there  is  an  incumbrance 

post,  for  a  full  discussion  of  the  sub-  upon  land  is  sufficient  to  charge  him 

ject.  with  notice ;  and  when  such  informa- 

2  Graves  v.  Coutant,  31  N.  J.  Eq.  tion  comes  to  the  knowledge  of  a 
763.  purchaser  the  law  requires   him  to 

3  Deason  V.  Taylor,  53  Miss.  697.  pursue   it  until  it  leads  to    notice. 

4  Foster  v.  Stall  worth,  62  Ala.  547;  ^tna  Ins.  Co.  v.  Ford,  89  111.  252. 
and  see  Neal  v.  Speigle,  33  Ark.  64.  ^  Newsome  v.  Collins,  43  Ala.   656 ; 
Any    notice    or    circumstance    that  Haskell  v.  State,  81  Ark.  91. 


INVESTIGATING    THE    TITI-K.  285 

§  22.  Koal  estate  cliari^eil  with  letrucies.  Where  title  is 
iicklucctl  tlii'ouf^li  devise  a  purcliasef  from  the  devisee  or  those 
chiimino-  under  him  is  impressed  with  the  duty  of  ascei'taining 
the  extent  of  the  devisee's  title  and  the  manner  of  its  invest- 
ure.  Xotwithstandi ng  that  the  hmd  may  have  been  specific- 
ally devised  it  may  be  hampered  with  conditions  or  charged 
"with  legacies  and  j)aymcut  of  debts. 

Legacies  are  primai'ily  payable  out  of  the  personal  estate  of 
the  decedent,  and  never  out  of  the  real  estate,  unless  there  is 
an  express  direction  to  that  effect  contained  in  the  will,  or 
unless  an  intention  thus  to  charge  may  fairly  be  implied  from 
the  language  uscd.^  But  a  testator  may  exonerate  his  per- 
sonal estate  entirely  and  subject  his  realty  alone  to  the  bur- 
den; and  when  it  clearly  appears  from  the  whole  will  that 
such  was  the  testator's  intention,  the  real  estate  will  be  the 
primary  fund.- 

While  the  earlier  decisions  would  seem  to  indicate  that  a 
legacy  could  not  be  declared  a  charge  upon  realty  unless  so 
expressly  stated  in  the  will,  the  tendency  of  modern  authorities 
is  to  place  this  matter  on  the  same  plane  as  other  testamentary 
provisions;  and  the  intention  of  the  testator  forms  the  govern- 
in«r  consideration,  re<^ardless  of  technical  rules.  Tliis  intent 
will  be  effectual  when  found  to  exist  in  any  form;  and  while 
a  mere  direction  for  the  payment  of  debts  and  legacies  will 
not  alone  create  a  charge,''  yet  when  the  testator  directs  his 
debts  and  legacies  to  be  first  paid  and  then  devises  real  estate; 
or  where  he  devises  the  remainder  of  his  estate,  real  and  per- 
sonal, after  the  payment  of  debts  and  legacies;  or  devises 
real  estate  after  such  payment, —  it  has  been  held  that  the  real 
estate  is  charged.* 

§  23.  Easements  and  servitudes.  It  is  a  general  rule  that 
parties  are  presumed  to  conti'act  with  reference  to  the  condi- 

1  Reynolds  v.  Reynolds,   16  N.  Y.  ^Lupton  v.  Lupton,  2  Joims.    Cli. 

259;  Lynes  v.  Townsend,    33  N.    Y.  (N.    Y.)    614;    Rogers   v.    Rogers,    1 

562;  Geiger  v.  North,  17  Ohio  St.  568.  Paige  (N.  Y.).  190. 

2 Nash    V.    Taylor,    83    Ind.    349;  ••Lupton  v.  Lupton,   2  Johns.  Cli. 

Buylau  v.   Meeker,  28  N.  J.  L.  300;  (N.  Y.)614;  Reynolds  v.  Reynolds,  16 

Hoslopv.  Gatton,  71111.   530;  Harris  N.  Y.  259;  Fenwick  v.  Chapman,   9 

V.    Douglas,    64  111.   472;  Quinby   v.  Pet.  (U.  S.)  470. 
Frost,  61   Me.  77;  Davis'  Appeal,  83 
Pu.  St.  348. 


2S6  INCIDENTS    OF   THE    CONTRACT. 

tion  of  the  property  at  the  time  of  sale.  This  is  undoubtedly 
true;  yet  to  affect  a  purchaser  with  notice  of  an  easement  in 
favor  of  an  adjoining  owner  the  easement  must  be  obvious 
and  apparent  to  any  observer.  An  apparent  sign  of  servitude 
must  exist  on  the  premises  purchased ;  or,  as  expressed  by  some 
of  the  authorities,  the  marks  of  the  burden  must  be  open  and 
visible.^ 

§  24.  Peiidiiig  litigation.  One  who  buys  an  estate  pend- 
ing a  suit  involving  the  question  of  title  thereto  Avill  be  con- 
sidered a  purchaser  with  notice,  although  not  a  party  to  the 
suit,  and  he  will  be  bound  by  the  judgment  in  the  action  just 
as  the  party  from  whom  he  bought  would  have  been.^  It  is 
immaterial  whether  or  not  such  purchaser  had  actual  notice 
of  the  suit,  for  the  rule  is  that  ev^cry  person  who  buys  property 
under  such  circumstances  is  conclusively  presumed  to  have  no- 
tice of  the  pending  litigation;"  and,  notwithstanding  that  the 
rule  in  its  application  may  sometimes  produce  apparent  hard- 
ships, it  is  always  strenuously  enforced.  It  is  stated,  as  the 
reason  of  the  rule,  that  if  it  were  not  so  applied  there  would 
practically  be  no  end  to  a  litigation,  and  that  the  justice  of  the 
court  would  be  continually  evaded,  thus  producing  a  greater 
hardship  and  inconvenience  to  the  suitor;*  while  the  justness 
of  the  rule  is  further  apparent  when  it  is  considered  that  to 
bring  home  to  every  purchaser  the  charge  of  actual  notice  of 
the  suit  must,  from  the  very  nature  of  the  case,  be  in  many 
instances  in  a  great  degree  impracticable.^ 

The  fact  that  the  purchaser  buys  in  ignorance  of  the  suit 
and  pays  an  adequate  price  for  the  property  in  no  way  serves 
to  relieve  him  from  the  consequences  of  his  acts;  the  convey- 
ance in  any  event  is  so  far  a  nullity  that  it  can  avail  him  noth- 
ing as  against  the  title  established  in  the  pending  suit;  and, 

J  Ingals  V.  Plamondon,  75  III.  118.  templation  of  law  every  man  is  pre- 

'^  Allen  V.  Poole,  54  Miss.  323 ;  Rol-  sumed  to  be  attentive  to  what  passes 

lins  V.  Henry,  78  N.  C.  342 ;  Norton  in  the  courts  of  the  state.    Parker  v. 

V.   Birge,  35  Conn.  259;  Edwards  v.  Conner,   95  N,  Y.   118;  Knowles  v. 

Banksmith,    35  Ga.    215;    Leitch  v.  Raflin,  20  Iowa,  101. 

Wells,  48  N.  Y.  G08 ;  Tattle  v.  Tur-  ■»  3Iurray  v.  Lylburn,  2  Johns.  Ch. 

ner,  28  Tex.  773.  (N.  Y.)  444. 

3  Rollins  V.   Henry.   78  N.  C.  343:  5  Parks  v,  Jackson,   11  Wend.  (.N. 

Smith  v.  Cottrell,  94  Ind.  381 ;  Meux  Y.)  459. 

v.   Anthony,   11  Ark.   422.     In  con- 


INVESTKJAIlNii    TIIK    TITLK.  287 

altliougli  there  has  bcea  no  acLiuil  fraud,  the  |)iiichasc  will  still 
be  set  aside  on  the  ground  of  implied  fraud. ^  Tiie  most  that 
a  purchaser  under  such  circumstances  can  acquire  would  be 
the  interest  remaining  in  the  vendor  after  the  demands  of  the 
adverse  party,  as  ascertained  by  the  pending  trial,  shall  have 
been  fully  satisfied.^ 

It  is  to  be  observed,  however,  that  the  application  of  the  rule 
that  a  purchaser  oi"  property  in  litigation  is  bound  by  the  judg- 
ment or  decree  made  is  confined  to  property  directly  in  litiga- 
tion; to  property  so  described  in  the  pleadings  as  gives  a 
purchaser  notice  that  the  property  which  he  buys  is  that  in- 
volved in  the  suit,'  and  that  the  doctrine  of  constructive  notice 
arising  from  lis  pendens  is  not  to  be  extended  beyond  the  im- 
mediate subject-matter  of  the  suit/  The  property'  involved 
must,  it  is  said,  be  so  pointed  out  in  the  proceedings  as  to  warn 
the  public  that  they  intermeddle  at  their  peril. 

It  is  further  to  be  observed  that  the  rule  applies  only  k) 
persons  dealing  with  the  defendant  in  the  action,  and  has  noth- 
ing to  do  with  independent  parties  asserting  their  own  adverse 
rights  in  the  property.  Hence,  a  purchaser  of  the  very  land 
described  in  the  pleadings  from  one  who  is  not  a  party  to  the 
suit,  or  a  privy  to  such  party ,^  is  never  chargeable  with  the  con- 
structive notice  of  lis  pendens.^ 

1  Murray  v.  Ballou,  1  Johns.  Ch.  though  general,  ^<'as  sufficient  to  put 

(N.  Y.)566;   Leitch  v.  Wells,  48  N.  him  on  inquiry. 

Y.  608.  5 It  ig  only  parties  and  their  privies 

'-Allen  V.   ]Morris,  34  N.  J.  L.  IGl.  in  blood  or  estate  that  are  estopped 

3  Badger  v.  Daniel,  77  N.  C.   251;  by  a  decree  or  judgment  and  parties 

Allen  V.   Poole,  54  Miss.  333;  Miller  to  a  decree,  in  the  eye  of  the  law,  are 

V.  Sherry,  2  Wall.  (U.  S.)  237 ;  Brown  those  only  who  are  named  as  such  in 

V.  Goodwin,  75  N.  Y.  409.  the  record,  and  are  properly  served 

^Shearon  v.   Henderson,   38  Tex.  with  process  or  enter  their  appear- 

264.     Compare  Green   v.   Slayter,  4  ance.     A  privy  in  blood  or  estate  is 

Johns.  Ch.  (N.  Y.)  38.     In  this  case  one  who  derives  his  title  to  the  prop- 

the  bill   described    the  property   as  erty  in  question  by  descent  or  pur- 

" divers  lands  in  Cosby's  manor,  in  chase;  and  a  privy  to  a  judgment  or 

the  patent  of  Springfield, and  certain  decree  is  one  whose  succession  to  the 

tracts  or  parcels  of  land  in  Oriskany  rights  of  property  thereby'  affected 

jiatont;"  and  the  court  held  that  the  occurred  after  the  institution  of  the 

purchaser  was  chargeable  with  notice  particular    suit  and   from    a    party 

of  the  pendency  of  the  suit  and  of  thereto. 

nW  the  facts  stated  in  the  bill,  and  ^  French  v.  Loyal,  5  Leigh    (Va.), 

tluit    the    description    of  the   lands,  627;  Parsons  v.  Hoyt..  44  Iowa,  154; 


2SS  I^•CIDI•;^■TS  of  tue  co^'tract. 

§25.  riirtiiersliip  property.  In  a  former  chapter  '  occa- 
sion was  bad  to  discuss  the  general  principles  of  law  in  respect 
to  partnership  holdings,  so  far  as  they  affect  the  relation  of 
vendor  and  vendee;  and  what  is  there  stated  may  be  profit- 
ably read  in  connection  with  this  chapter.  It  is  unnecessary 
to  recapitulate  what  is  there  stated ;  and  there  need  only  be 
said  that,  where  purchasers  of  real  estate  have  actual  or  con- 
structive notice  at  the  time  of  their  purchase  that  it  was  part- 
nership property,  it  will  be  chargeable  in  their  hands  with  the 
payment  of  the  partnership  debts,  although  they  may  have 
had  no  notice  of  the  existence  of  those  debts.  If  they  had  no 
notice  that  it  was  partnership  ]n'operty,  they  are  exonerated 
to  the  extent  of  the  purchase  money  paid  by  them,  and  so  far  as 
the  purchase  money  has  not  been  paid,  that  is  a  substituted  fund 
chargeable  in  their  hands  with  the  same  burdens  as  the  real 
estate.- 

§  26.  Notice  to  agent.  The  authorities  seem  to  be  united 
upon  the  proposition  that  notice  to  the  agent  of  a  purchaser  is 
notice  to  the  purchaser;-'  and,  in  like  manner,  notice  to  a  part- 
ner in  a  purchase  of  lands  of  prior  rights  or  equities  is  notice 
to  the  other  partner.^  So,  also,  notice  to  the  attorney  is  as 
effectual  as  to  the  client;^  yet  it  does  not  seem  that  a  party  is 
chargeable  with  notice  of  facts  within  the  knowledge  of  his 
attorney,  of  which  the  latter  acquired  knowledge  while  acting 
as  the  attorney  of  another  person.^ 

§  27.  Joint  purchasers.  While  it  seems  to  be  the  rule  that 
a  notice  to  a  partner  in  a  purchase  of  lands  of  prior  rights  or 
equities  is  notice  to  the  other  partners,  3^et  in  the  case  of  a 
purchase  made  by  several  jointly  or  as  tenants  in  common,  if 
there  is  in  existence  an  incumbrance  or  conveyance  affecting  the 
title  to  the  land,  those  who  have  notice  of  the  same  wdl  hold 
their  title  in  subordination  to  it,  while  those  who  did  not  have 

Clarkson  v.  Morgan,  6  B.  Mon.  (Ky.)  Meier  v.  Blume,  80  Mo,  179;  Smith 

441 ;    Herrington   v.    Herrington,    27  v.  Duntou,  42  Iowa,  48. 

Mo.  560 ;  Scarlett  v.  Gorham,  28  111.  i  Rector  v.    Rector,    3  Gilm.   (III.) 

319;  Miller  v.  Sherry,  2  Wall.  (U.  S.)  105. 

250.  5  Williams  v.  Tatnall,  29  111.  553. 

1  See  chapter  II,  p.  61,  ante.  ^  Herrington  v.  McCoUum,  73  III. 

-'  Hoxie  V.  Carr,  1   Sunin.  (C.  Ct.)  470 ;  Campbell   v.  Benjamin,  69  III. 

173.  244. 

3Bigley    v.  Jones,  114  Pa.  St.  510; 


INVESTIGATING    THE    TITLE.  2S9 

such  notice  will  hold  their  title  free  from  the  claim  to  which 
their  co-tenants  are  subjected.  This,  it  is  held,  will  always  be 
the  case  where  there  is  no  proof  that  the  parties  affected  with 
notice  were  not  acting  as  the  agents  or  attorneys  of  the  others, 
or  by  virtue  of  a  partnership.'  The  rule  that  notice  to  a  co- 
tenant  is  not,  by  mere  force  of  the  relation,  notice  to  any  of 
his  companions,  unless  in  case  of  notice  to  quit,  seems  to  bo 
fully  applicable  to  a  case  of  this  kind.^ 

§  28.  Rebutting  presumption  of  notice.  Where  circum- 
stances are  brought  directly  home  to  the  knowledge  of  a  pui-- 
chaser,  sufficient  in  law  to  put  him  on  inquiry  and  thus  amount 
to  notice,  he  will  be  entitled  to  rebut  the  presumption  of  no- 
tice which  would  otherwise  arise  by  showing  the  existence  of 
other  attendant  circumstances  of  a  nature  to  allay  his  suspicions, 
and  lead  him  to  suppose  the  inquiry  was  not  necessary.*  So, 
also,  where  the  circumstances  relied  on  as  sufficient  to  charge 
a  party  with  notice  by  requiring  him  to  make  inquiry'  ma}'  be 
equall3'as  well  referred  to  a  different  matter  or  claim  as  to  the 
one  he  is  sought  to  be  chargeable  with  notice  of,  they  will 
not  be  sufficient.* 

>  Wait  V.  Smith,  92  111.  385;  Snyder  3  See  Rogers  v.  Jones,  8  N.  H.  264  ; 

V.  Sponable,  1  Hill  (N.  Y.),  567.  Williamaon  v.  Brown,  15   N.  Y.  354. 

2  Wait  V.  Smith,  92  111.  385.  ••Chad wick  v.  Clapp,  69  111.  119. 
19 


290  INCIDENTS    OF   THE    CONTKACT. 


CHAPTER  X. 


THE  ABSTRACT. 


§  1.    General  principles. 

2.  Duty  of  furnishing  abstract. 

3.  "When  the  abstract  is  made  a 

condition. 

4.  Right  to  time  for  examining 

title. 


5.  Good  and  suflicient  abstract. 

6.  Originals  and  copies. 

7.  What  the  abstract  should  show. 

8.  Root  of  title. 

9.  Perusing  the  abstract. 


§  1.  General  principles.  It  has  now  become  an  almost 
universal  custom  in  all  cases  of  transfer  of  real  estate  for  the 
vendor  to  furnish  to  the  vendee  satisfactory  evidences  of  the 
soundness  of  the  title  which  he  asserts  and  of  his  right  to  claim 
and  dispose  of  the  estate  which  forms  the  subject-matter  of  the 
trade.  For  this  purpose  the  vendor  would  most  naturall}''  pro- 
duce his  muniments  of  title  —  the  deeds  or  matter  in  writing 
upon  which  he  founds  his  claim  of  ownership.  But  as  the  ar- 
rangement and  perusal  of  these  documents  must  often  occasion 
much  loss  of  time,  a  practice  grew  up  in  England  during  the 
latter  part  of  the  last  century  of  making  an  orderly  synopsis 
of  all  the  material  and  operative  parts  of  the  instruments  which 
constituted  the  vendor's  chain  of  title;  and  this  synoptical 
chain,  called  an  abstract  of  the  title,  was  given  to  the  vendee 
prior  to  the  consummation  of  the  contract,  in  order  to  expe- 
dite his  labors  in  the  examination  of  the  vendor's  title. 

This  practice  of  the  English  conveyancers  was  adopted  by 
the  legal  profession  in  America,  and  soon  became  of  even 
more  importance  here  than  in  the  country  of  its  origin,  for 
the  reason  that  title  deeds  are  rarely  preserved  for  any  length 
of  time,  and  could  not  in  many  instances  be  produced  —  the 
public  records  being  regarded  as  the  great  depositories  of  title, 
and  the  individual  paying  but  little  attention  to  his  muniments 
after  they  had  once  been  transcribed.  To  search  the  records, 
even  while  it  might  be  an  imperative  legal  duty,  was  never- 
theless a  task  of  such  herculean  proportions  as  to  render  it 
in  many  cases  absolutely  impossible;  and  so  a  distinct  branch 
of  legal  practitioners  was  gradually  organized  whose  sole  duty 


THE    ABSTKACT.  291 

it  was,  by  properly-prepared  indices  and  references,  to  pro- 
cure and  furnish  from  the  public  records  the  same  general  and 
special  information  that  the  English  conveyancer  culled  from 
the  original  instruments  in  his  hands,  the  work  of  the  Amer- 
ican practitioner  retaining  the  same  name  that  had  been  given 
to  its  English  prototype,  viz.,  an  abstract  of  the  title. 

The  American  abstract  differs  in  many  j)articulars  from 
that  in  use  in  England,  being  far  broader  in  its  scope  and  ex- 
tending its  inquiries  not  only  among  all  classes  of  papers  that 
might  disclose  claims  or  equities,  but  also  to  the  judgments 
and  decrees  of  courts  of  record,  and  to  such  liens  as  might 
be  created  b\'  any  of  the  municipal  agencies  of  the  state. 
AVhen  properly  prepared  it  constitutes  an  almost  indispensable 
adjunct  to  every  contract  of  sale,  and  its  production  is  usually 
made  a  condition  precedent  in  all  agreements  for  conveyance.' 

§  2.  Duty  of  furnishing  abstract.  In  England  a  pur- 
chaser may,  it  seems,  require  to  be  furnished  with  an  abstract 
of  the  seller's  title,  even  though  he  may  have  already  agreed 
to  accept  the  same,  and  that  he  may  retain  such  abstract  during 
the  negotiations  upon,  and  even  after  rejection  of,  the  prof- 
fered title,  until  the  dispute  is  finally  settled,  for  the  purpose 
of  showing  the  grounds  of  such  rejection.'-'  It  will  be  remem- 
bered, however,  that  an  English  abstract  is  frequently  only  a 
digest  of  the  title  tleeds  and  muniments  relied  on  bv  the  vendor 
to  establish  his  claim,  and  which  invariably  accompany  the 
abstract  for  examination  and  comparison.  The  abstract  so 
furnished,  therefore,  is  rather  in  the  nature  of  a  well-arranged 
index  to  accompany  documents,  and  is  prepared  primarily  for 
their  more  convenient  and  systematic  perusal.  An  American 
abstract,  on  the  contrary,  is  intended  to  furnish  within  itself 
a  full  exposition  of  title,  and  to  obviate  the  necessity  of  refer- 
ring to  the  original  sources  of  information.  In  the  former  case 
the  deeds  and  muniments  are  in  the  hands  or  under  the  con- 
trol of  the  vendor,  and  the  reason  of  the  English  rule  is  ob- 

1  The  author  modestly  calls  the  at-  important   siihject,    and    to  suggest 

tention  of  those  of  his  readers  who  that  its  perusal  could  be  most  advan- 

may   desire  to  pursue  this   subject  tageously  made  in  connection   with 

more    in    detail   to  his   own   work,  the  present  work. 

••  Warvelle  on  Abstracts  of  Title,"  be-  -See    2    Sudg.   Vend.   *39;    Dart, 

ing  the  only  American  work  on  this  Vend.  (Am.  ed.)  130. 


292  INCIDENTS    OF   THE    CONTRACT. 

vious  from  this  fact  alone.  But  in  the  United  States  the 
changed  conditions  of  the  evidences  of  title,  the  actual  and 
constructive  notice  imparted  by  registration,  and  the  access 
which  the  purchaser  has  to  information  concerning  the  title, 
would  seem  to  render  inoperative  the  English  rule  by  remov- 
ing the  reason  which  occasioned  it;  and,  while  it  is  customary 
in  this  country,  as  in  England,  for  the  vendor  to  prepare  and 
furnish  an  abstract  of  title,  either  pending  or  after  consumma- 
tion of  the  sale,  it  does  not  appear  that  this  can  be  demanded 
as  a  matter  of  right,  but  is  rather  the  result  of  the  contract  or 
conditions  of  sale. 

In  England,  where  titles  are  not  registered,  the  vendor,  in 
order  to  show  performance  or  an  offer  to  perform  on  his  part, 
whether  in  an  action  at  law  for  the  purchase  money  or  a  suit 
in  equity  to  compel  performance  by  the  vendee,  must  affirma- 
tively prove  his  title.  In  this  country,  where  titles  are  mat- 
ters of  record,  and  at  all  times  open  for  inspection,  a  different 
rule  prevails.  This  doctrine  has  often  been  assumed  in  actions 
by  the  vendor  for  the  purchase  money  ;^  and  it  has  been  ex- 
pressly held,  in  equity,  that  a  vendor  may  rely  upon  his  tender 
of  conveyance  without  producing  the  evidences  of  his  title, 
the  burden  being  upon  the  purchaser  to  show  such  a  defect  as 
would  justify  him  in  refusing  to  accept  the  deed.^ 

§  3.  When  the  abstract  is  made  a  condition.  While  the 
furnishing  of  an  abstract  cannot  be  said  to  be  demandable  as 
a  matter  of  legal  right,  even  where  a  custom  to  that  effect 
may  prevail,  it  is  nevertheless  a  condition  precedent  in  most 
sales  by  the  express  agreement  of  the  parties.  AYhere  parties 
make  a  contract  for  the  sale  or  exchange  of  lands  which  pro- 
vides for  the  exhibition  of  an  abstract  showing  title  in  the 
proposing  parties  by  a  day  named,  this  is  a  condition  prece- 
dent to  be  performed  before  either  party  in  case  of  an  ex- 
change, or  the  vendor  in  case  of  sale,  can  call  upon  the  otiier 
to  perform  the  agreement;  and,  if  the  abstract  is  not  satis- 
factory or  fails  to  show  the  title  agreed  to  be  made,  the  other 
may  elect  to  consider  the  contract  at  an  end.'  The  party  re- 
quired to  furnish  the  abstract  has  no  right  to  demand  an  ex- 

1  Little  V.  Paddleford,  13  N,  H.  2  Espy  v.  Anderson,  14  Pa.  St.  308; 
167  Daily  v.  Litchfield,  10  Mich.  38. 

3  Howe  V.  Hutchison,  105  111.  501. 


THE    ABSTRACT.  293 

tension  of  time  in  which  to  furnisli  an  additional  abstract,  the 
first  not  showing  title  as  agreed;  and  if  the  other  party  re- 
fuses to  give  such  extension  and  refuses  to  perform  for  want 
of  an  abstract  in  proper  time  siiowing  title,  this  will  put  an 
end  to  the  contract.' 

But  where  the  contract  ])rovides  that  the  vendor  is  to  fur- 
nish an  abstract,  and  notice  is  given  where  sucli  abstract  may 
bo  found  and  inspected,  it  would  seem  that  failure  of  the 
vendor  to  furnish  the  same,  when  no  objection  is  urged  at  the 
time,  will  not  authorize  the  purchaser  to  rescind.^ 

^  4.  Right  to  time  for  examining  title.  Usually  the  time 
allowed  for  an  investigation  of  the  title  is  fixed  by  the  pro- 
visions of  the  contract,  and  this  is  almost  invariably  the  case 
where  the  vendor  also  agrees  to  furnish  or  exhibit  an  abstract. 
But  even  in  the  absence  of  such  stipulations  the  purchaser  is 
entitled  to  a  reasonable  time  for  such  examination  before 
making  payment.^ 

§  5.  Good  and  snfficient  abstract.  It  has  now  become 
common  to  insert  in  agreements  for  sale  and  conveyance  not 
only  a  stipulation  for  a  "good  and  sufficient"  deed  of  convey- 
ance of  the  property  in  question,  but  also,  where  the  vendor 
undertakes  and  agrees  to  exhibit  his  title,  a  clause  providing 
for  the  furnishing  of  a  "good  and  sufficient"  or  "  merchantable" 
abstract  of  title.  In  many  localities  this  clause,  if  employed, 
would  occasion  no  controversy,  and  local  custom  would  prob- 
abl}'  be  sufficient  to  indicate  what  was  meant.  Yet  in  other 
places  which  have  come  within  and  under  the  observation  of 
the  writer  the  proper  answer  to  " "What  constitutes  a 'good 
and  sufficient'  abstract?"  has  been  the  subject  of  much  heated 
controversy  among  real  estate  brokers  and  attorneys.     The 

^Howe  V.  Hutchison,  10')  III.  501.  sequently  the  vendor  was  notified  b)' 
-  Papin  V.  Goodrich,  103  111.  8(\  the  purchaser  that  he  declined  to 
The  abstract  in  this  case  was  in  the  cany  out  the  contract  because  it  was 
hands  of  a  third  party  who  then  held  then  too  late,  but  this  objection  the 
a  loan  upon  the  property  which  the  court  held  to  be  untenable ;  Jind  as 
purchaser,  by  the  terms  of  the  con-  the  purchaser's  refusal  to  perform 
tract,  was  bound  to  pay.  TIio  pur-  was  placed  on  another  ground  than 
chaser  was  notified  where  the  ab-  the  failure  to  furnish  the  abstract,  it 
Btract  was,  and  that  it  could  be  ex-  was  held  that  no  right  of  rescission 
amined  there  at  any  time.  No  ob-  existed. 
Jection  was  made  to  this;  but  sub-       3  \iien  v.  Atkinson,  21  Mich.  351. 


294:  INCIDENTS    OF   THE    CONTKA.CT. 

former  class,  as  a  rule,  care  little  about  the  abstract,  which 
they  are  ever  inclined  to  regard  with  suspicion,  and  consider 
as  the  most  dangerous  ingredient  that  enters  into  the  compo- 
sition of  the  trade.  Should  it  be  rejected  by  the  attorney  who 
has  been  selected  to  "  pass  the  title  "  as  insufficient  or  unreli- 
able, a  disagreeable  hitch  ensues,  and  the  negotiation  itself 
must  often  be  abandoned.^  No  effort  has  ever  been  made  to 
settle  this  much- vexed  question  by  a  statutory  enactment,  and 
from  the  peculiar  nature  of  the  subject  probably  no  movement 
in  this  direction  will  ever  be  made.  Indeed,  none  can  be 
made  with  advantage;  and  the  question  can  best  be  settled,  if 
at  all,  by  the  institution  and  maintenance  of  a  uniform  custom. 
In  populous  cities  real  estate  boards,  acting  in  concert  with 
the  bar,  ma}''  do  much  to  definitely  settle  local  usages  by  pre- 
scribing conditions  or  defining  terms.  In  other  places  bar 
associations  might  advantageously  decide  what  shall  and  what 
shall  not  be  taken  as  a  "good  and  sufficient"  abstract  in  their 
respective  localities.  No  judicial  decisions  directly  involving 
the  point  under  consideration  are  known  to  the  writer,  or 
could,  on  diligent  search,  be  found. 

Generally  considered,  a  stipulation  to  deliver  a  good  and 
sufficient  abstract  is  fully  complied  with  where  the  synopsis 
furnished  is  arranged  in  an  orderly  m;mner  for  perusal  and 
its  correctness  is  certified  by  some  person  of  known  skill  and 
undoubted  financial  responsibiUty.     More  than  this  could  not 

1  "  It  has  been  found  that  the  ab-  with  many  being  rejected  as  vahie- 

stracts  of  title  upon  vvliich  transfers  less  by  others.     From  this  lack  of 

are  made  are  of  many  different  kinds  uniformity  arises    constant  friction 

and  of  widely-varying  value  —  origi-  and  confusion ;  in  many  cases  heavy 

nals  from   numerous    private  firms  expenditures  are  enfored  upon  unfort- 

and    from    the    county    recorder —  unate  owners  in  replacing  rejected 

copies  written  and  printed,  certified  abstracts  with  acceptable  ones ;  sales 

and  uncertified,  issued  by  abstract  are  broken  up,  owners  disgusted  with 

men,  printers,  lawyers,  notaries  and  real  estate;  agents  dissatisfied  over 

real  estate  men.     It  has  been  found  the  loss  of  time  and  commissions, 

that  there  is  a  wide  diversity  of  prac-  and  attorneys  in  previous  examina- 

tice  on  the  part  of  our  agencies  and  tions  annoyed  and  embarrassed  at 

the  attorneys  as  to  the  recognition  or  the  throwing  out  of  abstracts  passed 

rejection  of  these  various  classes  of  upon  by  them."     Extract  from  Com- 

abstracts  when  presented  for  accept-  mittee  Report  to  Chicago  Real  Estate 

ance  by  borrowers  and  sellers ;  ab-  Board,  1887. 
stracts    which  readily  pass  current 


TUE    ABSTRACT.  295 

reasonably  be  demanded;  but  it  would  seem  that,  for  tlic 
<louble  purpose  of  convenience  and  safety,  nothing  less  should 
be  accepted. 

Public  oflicials,  usually  the  recorder  of  deeds  or  the  person 
having  the  official  care  and  custody  of  real  estate  records,  are 
in  some  states  empowered  by  law  to  prepare  and  furnish  ab- 
stracts of  the  records,  certifying  the  same  under  their  hands  as 
such  officers,  and  attesting  their  certificates  with  the  seal  of 
tlieir  office.  Compilations  so  made  are  generally  regarded  as 
•'regular,"  and  taken  to  be  a  full  compliance  with  the  stipula- 
tion to  furnish  a  good  or  merchantable  abstract.  E.xperience 
has  demonstrated,  however,  that  the  best  and  most  satisfactory 
work  is  done  by  private  firms  exclusively  engaged  in  the  busi- 
ness of  furnishing  abstracts,  providing  their  certificates  an,; 
lacked  by  sufficient  financial  ability  to  respond  in  damages 
for  error  or  omission. 

§  6.  "  Originals  "  and  copies.  The  worth  or  worthlessncss 
of  an  abstract  is  often  judged  by  its  character  as  an  original 
examination  or  as  a  copy  of  the  same.  Strictly  speaking,  an 
"original "  is  the  first  manuscript  work  made  directl}"  from  the 
public  records;  but  as  private  indices  have  now  come  into  gen- 
eral use  to  simplify  and  systematize  the  making  of  abstracts, 
the  compilations  made  from  these  indices  b}'  the  owners  are 
generally  regarded  and  taken  as  "originals."  Duplicates  and 
copies  of  these  originals,  made  and  certified  by  the  maker  of 
the  originals,  are  for  all  intents  and  purposes  as  good  as  such 
originals,  and  may  fairly  be  classed  with  them.  An  abstra-ct 
in  either  of  the  above  forms,  possessing  the  incidents  prescribed 
in  the  preceding  section,  is  in  ever}--  sense  of  tiie  word  "mer- 
chantable," and  should  satisfy  any  reasonable  purchaser.  l)ni 
in  addition  to  these  forms  it  is  not  uncommon  for  owners  of 
subdivisions  and  others  to  multiply  copies  of  the  original 
through  the  media  of  manuscript  copyists,  the  "hectograph" 
and  the  printing  press,  with  certifications  by  the  writers  or  tue 
])rinter;  certificates  of  comparison  by  notaries,  and  often  with 
no  certification  whatever.  All  of  these  forms  arc  bad;  they 
differ  only  in  degree,  not  in  kind. 

It  has  been  claimed  that  ])rinted  copies  are  far  more  reliable 
and  trustworthy  than  where  a  number  of  written  copies  are 
made  from  the  same  original.     Undoubtedly  this  is  true;  and 


296  INCIDENTS    OF   THE   CONTRACT. 

where  the  \Tork  is  properly  and  conscientiously  performed,  a 
])rinted  copy  is  much  to  be  preferred.  But  the  fact  remains 
that  attorneys  refuse  to  accept  them  or  j^redicate  oi)inions  upon 
them,  and  the  general  impression  seems  to  prevail  that  they 
arc  inherently  vicious.  The  reason  for  this  lies  mainly  in  the 
fact  that  the  temptation  for  the  interpolation  of  foreign  mat- 
ter or  the  suppression  or  expurgation  of  original  matter  is  so 
great  that  unscrupulous  parties  not  infrequently  do  not  hesi- 
tate to  resort  to  such  expedients  to  conceal  the  defects  of  im- 
])erfect  titles.  A  printed  copy,  if  made  by  an  honorable  and 
responsible  person,  who  at  the  chjse  of  such  copy  appends  a 
certificate  of  verification,  loses  some  of  its  objectionable  feat- 
ures; yet  this  is  but  a  poor  protection,  as  the  printer  merely 
presents  what  he  finds,  and  if  foreign  matter  has  been  intro- 
duced into  the  original  it  will  of  course  be  reproduced  in  the 
duplicate.  Xordoes  the  fact  that  a  comparison  of  such  dupli- 
cate with  the  original  has  been  made  by  a  notar}'-,  and  of  which 
fact  a  certificate  under  his  hand  and  olficial  seal  accompanies 
the  copy,  make  the  copy  much  if  any  more  reliable.  In  both 
of  these  instances  the  opportunities  for  fraud  and  imposition 
are  present;  while  ignorance,  carelessness,  mistake  and  acci- 
dent may  all  conspire,  where  no  bad  faith  exists,  to  render 
such  copy  inaccurate  and  unreliable. 

§  7.  What  the  abstract  should  show.  The  primary  office 
of  the  abstract  is  to  save  time  and  facilitate  labor.  It  is  to  re- 
lieve intending  purchasers  from  the  necessity  of  examining 
the  public  records,  and  inspecting  such  portions  thereof  as  may 
affect  the  title  which  forms  the  subject  of  the  sale.  This  bur- 
den is  imposed  by  law,  and  cannot  be  avoided;  and  hence  the 
abstract  should  be  so  compiled  as  to  fully  apprise  the  pur- 
chaser of  every  incident  connected  with  the  title  as  disclosed 
by  the  records.  This  would  include  the  material  and  opera- 
tive part  of  all  conveyances  of  every  kind  and  nature,  together 
with  full  and  lucid  statements  of  all  liens,  charges  or  liabili- 
ties to  which  the  land  might  be  subject;  and  the  synopsis 
should  be  so  arranged,  with  reference  to  chronological  se- 
quence, as  to  properly  show  the  origin,  course  and  incidents 
of  the  title,  without  the  necessity  of  referring  to  the  original 
sources  of  information.  For  all  practical  purposes  of  exami- 
nation the  abstract  takes  the  place  of  the  records,  and  presuma- 


TIIK    ACSrUACT.  297 

bly  obviates  all  necessity  of  reference  thereto;  licncc  it  should 
be  full  and  explicit,  with  liberal  quotations  from  the  instru- 
ments whenever  a  presentation  of  the  exact  language  em- 
])loyed  is  necessary  to  a  better  understanding  of  its  im))ort, 
and  not,  as  is  too  often  the  case,  merely  a  sparsely-filled  and 
imj)erfectly-woven  chain,  which  usually  serves  no  better  pur- 
pose than  a  mere  index,  throwing  upon  the  purchaser  all  the 
labor  of  direct  examination  whenever  questions  of  moment  arc 
raised. 

Nor  r.hould  the  abstract  be  confined  to  the  elucidation  of  a 
single  issue,  as  the  tracing  of  the  title  of  the  vendor  to  the 
exclusion  of  adverse  titles  or  claims  or  evidences  of  title.  This 
is  or  was  formerly  the  English  practice;  and  as  the  American 
abstract  is  only  an  adaptation  of  the  methods  of  the  English 
conveyancers,  it  is  not  uncommon  in  some  parts  of  the  coun- 
try to  find  abstracts  compiled  on  this  plan  —  that  is,  "an  al)- 
stract  of  the  title  of  Jno.  Smith  to,"  etc.  A  properly-prepared 
abstract  shows  the  true  condition  of  the  title,  and  the  office  of 
counsel  to  whom  the  abstract  is  intrusted  for  examination  is 
to  decide  in  whom  the  title  vests.  A  purchaser  examining  the 
records  must  observe  everything  that  lies  in  the  apparent  course 
of  title,  and  in  most  cases  everything  that  in  any  way  implicates 
it,  whether  adverse  or  consistent  with  the  ownership  of  the 
vendor.  This  the  abstract  should  show.  The  judgments,  de- 
crees and  orders  of  courts,  when  they  affect  the  title  directly  or 
collaterally,  are  also  of  the  highest  importance,  and  frequently 
the  anterior  proceedings  which  culminated  in  such  judgments 
or  decrees;  while  tax  levies,  assessments  and  liens  and  sales 
made  thereunder  are  equally  important.  These  comprise  the 
essentials  of  an  abstract,  and  the  omission  of  any  of  them  is 
to  render  the  abstract  imperfect. 

In  addition  thereto  further  information  may  be  required  bv 
counsel,  which  is  usuallv  furnished  by  the  vendor  from  other 
sources  than  the  public  records.  Thus,  in  the  case  of  titles  by 
descent,  the  proof  of  heirship  upon  the  probate  of  the  ances- 
tor's estate  takes  the  place  of  the  pedigrees  so  often  annexed 
to  English  abstracts;  but  if  there  has  been  no  probate,  the  in- 
formation must  be  supplied  by  other  means.  Generally  this 
is  accomplished  by  affidavits  of  persons  cognizant  of  the  facts. 
So,  also,  with  respect  to  marriages.     It  is  only  during  very 


29S  INCIDENTS    OF   THE    CONTRACT. 

recent  years  Uiat  any  systematic  attempt  Ijas  been  made  on 
the  part  of  the  state  to  collect  and  preserve,  in  the  form  of 
authoritative  records,  any  data  with  respect  to  the  social  rela- 
tions of  its  citizens.  Man^iage  registers  have  usually  been  kept 
as  part  of  the  parochial  records  of  many  denominationgil 
churches;  and,  for  want  of  better  evidence,  entries  made  in 
such  registers  have  been  received  as  evidence  of  the  facts  they 
purport  to  state.  State  registration  has  been  established  in 
many  states,  and  greater  pains  are  now  generally  used  to  pre- 
serve reliable  data  of  births,  deaths  and  marriages;'  yet,  even 
where  such  registers  are  kept,  the  information  the^'^  furnish 
must  often  be  supplemented  by  evidence  aliunde  in  order  to 
show  identity  of  person.  This  evidence  usually  takes  the  form 
of  an  affidavit  reciting  the  facts.  Such  affidavits,  being  only 
ex  parte  statements,  and  because  not  being  made  under  the 
sanction  of  a  court  or  in  any  legal  proceeding,  are  not  strictly 
evidence  for  any  purpose;  yet,  being  usually  all  that  can  be 
adduced,  they  are  resorted  to  by  conveyancers  under  a  choice 
of  difficulties,  and  have  been,  as  it  were,  by  common  consent 
of  the  profession,  adopted  as  evidence  in  the  examination  of 
titles  and  the  testimony  taken  as  corroborative  evidence  of 
general  reputation,  etc.  Again,  such  affidavits,  though  inad- 
missible under  the  rule  of  evidence,  are  valuable  from  the 
reason  that  they  show"  that  living  persons  can  at  the  time 
establish  the  facts  therein  recited. 

§  8.  Root  of  title.  There  must  of  necessity  be  some  definite 
point  at  which  an  examination  of  title  should  commence,  and 
beyond  Avhich  it  should  not  necessarily  be  extended;  but  in 
the  United  States  there  is  no  rule,  nor  can  there  be  said  to  be 
any  general  custom  having  the  force  of  a  rule,  which  provides 
with  any  degree  of  certainty  how"  far  back  an  examination 
should  extend.  It  was  formerly  customary  in  England  to 
commence  at  some  agreed  point  sixty  years  back,  and  Mr. 
Sugden  and  other  English  writers  announce  this  as  a  general 
rule;  but  recent  legislation  in  that  country  has  considerably 

1  Such  records,  when  made  and  v.  Wallace,  9  N.  H.  51o;  Milford  v. 
kept  pursuant  to  law,  are  received  as  Worcester,  7  Mass.  48 ;  State  v.  Pot- 
presumptive  evidence  of  the  mar-  ter,  53  Vt.  33;  Niles  v.  Sprague,  13 
riage,  birth  or  death  so  recorded.  State  Iowa,  198. 


Tin:    ABSTRACT.  299 

shortened  the  period  of  limitation,  and,  by  so  doing,  removed 
the  necessit}'  of  the  rule.' 

Whenever  practicable  the  abstract  should  disclose  the  incep- 
tion of  title,  irrespective  of  time;  but  where  this  cannot  be 
readily  done,  it  should  commence  with  some  well-authenticated 
fact  at  some  period  remote  enough  to  cover  any  adverse  in- 
terest or  equity  that  could  successfully  be  asserted.  This 
period  woukl,  of  course,  be  fixed  with  reference  to  the  stat- 
utes of  limitation.  Thus,  ten  years,  and  in  some  states  seven 
years,  would  be  sufficient  to  cover  judgment  liens,  and  possi- 
bly some  other  classes;  while  twenty  years,  which  is  the  term 
during  which  actions  will  lie  for  the  recovery  of  lands,  would 
in  a  majority  of  cases  be  sufficient.  But  as  the  disability  of 
parties,  intervening  estates  and  other  circumstances  might  be 
sufficient  to  prevent  the  statute  from  running  whatever  point 
is  selected  as  the  root  of  title,  great  care  must  be  employed, 
and  exigencies  will  arise  in  the  course  of  mau}-^  titles  that 
would  justify  the  rejection  of  the  same  when  a  period  of  not 
more  than  twenty  years  is  covered  by  the  search. 

§  0.  Perusing  tlie  abstract.  Mr.  Sugden,  among  his  many 
excellent  suggestions  relative  to  examinations  of  title,  says: 
"Tiie  |)erusal  should,  if  the  length  of  the  abstract  will  permit 
of  it,  be  finished  at  one  sitting,  although  any  difficult  point  of 
law,  the  whole  bearing  of  which  is  not  ascertained,  may  pro})- 
erly  be  reserved  for  further  and  separate  consideration."  - 
He  further  suggests  that  it  jnay  be  well  to  glance  over  the 
abstract  in  the  first  place  in  order  to  obtain  a  general  view  of 
the  title,  and  that  experience  will  rapidly  point  out  when  a 
subsequent  part  of  the  abstract  may  be  looked  into  before  its 
proper  turn;  but  that,  generally  speaking,  an  abstract  should 

1  In  England,  by  statute  (37  and  38  forty  years  may  be  reiiuired  in  cases 

Vict.   cb.   78),   on  tlie  completion  of  similar  to  those  in  whicii  earlier  title 

any  contract    of  sale  of  land  made  than  sixty  years  was  required, 

after  December  31,  1874,  and  subject  Upon  a  sale  of  leasehold  property, 

to  any  stipulation  to  the  contrary-  in  without  any  condition  pi'otecting  the 

the  contract,  forty  years  shall  be  sub-  vendor    against    the    production    of 

stituted  as  the  period  of  comtnence-  deeds,  the  vendor  is  bound  to  pro- 

ment  of  title  which  a  purchaser  may  duce  the  lease  which  is  the  root  of 

require   in  place   of  sixty  years,  the  his  title,  although  the  lease  is  more 

former  period  of  commencement,  but  than  sixty  jears  old. 

wiih  a  proviso  that  earlier  title  than  -2  Sugd.  on  Vend.  (8th  Am.  ed.)  9. 


300  INCIDENTS   OF   THE    CONTKACT. 

be  perused  but  once,  and  that  once  effectually.  It  will  be  re- 
membered, however,  that  the  abstract  to  which  Mr.  Sugden 
referred  was  very  different  in  its  general  complexion  and 
make-up  from  the  abstracts  now  in  current  use  in  this  countr}', 
and  was  invariably  accompanied  by  the  muniments  which  it 
professed  to  exhibit.  The  difference  in  the  plan  of  compila- 
tion, as  well  as  the  effect  of  the  instruments  with  reference  to 
registration,  notice  and  other  incidentals  not  common  to  the 
English  abstracts,  renders  a  somewhat  different  course  neces- 
sar}'^  from  that  pointed  out  by  Mr.  Sugden.  Whether  the  ab- 
stract be  long  or  short,  and  the  title  simple  or  complicated,  a 
general  perusal,  in  order  to  obtain  a  preliminary  view,  should 
first  be  made.  This  perusal  is  only  to  establish  the  fact  of  an 
apparent  chain  of  title  from  its  source — the  government  — 
or  from  some  person  proposed  in  whom  the  title  is  assumed  to 
be  good.  To  assist  in  arriving  at  a  correct  estimate  an  analy- 
sis of  the  abstract  must  always  be  made  in  intricate  cases,  and 
the  same  will  be  found  useful  in  every  case.  Having  estab- 
lished the  fact  of  apparent  title  extending  in  unbroken  sequence 
from  the  initial  point  to  the  person  to  whom  it  is  last  asserted, 
a  critical  review  of  every  remove^  must  then  be  made  to  de- 
termine its  effect  and  validity  in  much  the  same  manner, 
though  not  for  the  same  purpose,  as  the  English  counsel  exam- 
ines the  muniments.  All  defects,  whether  of  form  or  substance, 
are  noted  upon  the  analysis  just  mentioned,  together  with 
notes  of  discrepancies,  objections  and  requisitions  for  further 
information.  It  would  be  unwise,  however,  to  lay  down  any 
unvarying  rule  for  a  matter  of  this  kind.  Men's  minds  are 
not  alike,  and  the  methods  that  insure  the  best  results  in  the 
case  of  one  may  be  entirely  inadequate  in  the  case  of  another. 
The  counsel's  personal  professional  habits  will,  after  all,  be  the 
best  guide.^ 

'  For  want  of  a  better  name,  each  numbered  seriatim  from  the  begin- 

link  in  the  chain,  whether  by  deed,  ning,   and    referred    to    by  number 

will,  mortgage,  lease,  etc.,  is  called  vvlienever  occasion  calls  for  reference. 

a  "  remove ;"  and  the  removes  are  all  -  Warvelle  on  Abstracts,  530. 


OBJECTIONS   TO   TMT.K. 


301 


CHAPTER   XL 


OBJECTIONS  TO  TITLE. 


§  1. 

Generally  considered. 

§18 

2. 

A  marketable  title. 

19, 

3. 

"  Satisfactory  "  title. 

4. 

Claims  of  title. 

20 

5. 

Title  of  record. 

21. 

6. 

Title  by  adverse  possession. 

22. 

7. 

Ancestral  titles. 

23 

8. 

Spurious  deeds. 

24. 

9. 

Hazard  of  litigation. 

10. 

Pending  litigation. 

25. 

11. 

Unsatisfied  judgment. 

26. 

12. 

Outstanding  incumbrances. 

27. 

13. 

Continued  —  Unsatisfied  mort- 

gage. 

28. 

14. 

Unpaid  taxes. 

29. 

15. 

Unreleased  dower  rights. 

30. 

IG. 

Dowress'  death. 

17. 

Title  subject  to  defeasance. 

31. 

Trusts  and  other  equities. 

Legal  title  outstanding  in 
trustee. 

Violation  of  fiduciary  trusts. 

Party-walls. 

Unopened  streets. 

Clouds  upon  title. 

Purchase  with  notice  of  de- 
fects. 

Variance  and  discrepancy. 

Stipulations  for  fail u re  of  title. 

Undertakings  in  respect  to 
title. 

Immaterial  defects. 

Waiver  of  objections  to  title. 

Effect  of  delay  in  making  ob- 
jection. 

Defects  in  the  subject-matter. 


§  1.  Generally  considered.  The  object  of  an  abstract  of 
the  title  is  to  facilitate  investigation,  and  to  enable  intending 
purchasers  to  acquaint  themselves  with  the  condition  of  the 
title  they  propose  to  buy.  It  takes  tiie  place  of  an  examina- 
tion of  the  records,  and  is  supposed  to  disclose  all  the  informa- 
tion material  or  necessary  to  a  proper  understanding  of  the 
vendor's  claim  of  ownership.  The  duty  of  investigation  is 
imposed  by  law  and  cannot  be  avoided;  and  if  the  purchaser 
sees  fit  to  forego  such  examination  he  does  so  at  his  peril,  and 
cannot  be  heard  to  disclaim  any  knowledge  which  such  exam 
i nation  would  have  afforded.'  "Whether  such  investigation  be 
made  by  inspection  of  the  records  or  by  a  perusal  of  the  ab- 
stract, it  is  a  further  duty  of  the  purchaser  to  note  all  such 
facts  as  may  tend  to  show  impairments,  defects,    flaws    or 


'  Every  man  purchases  at  his  peril,  answer  to  rest  upon  mere  reputation 

and  is  bound  to  use  some  reasonable  or  lx?lief,  unless  the  party  intends  to 

diligence  in  looking  to  the  title  and  rely  upon  his  covenants  alone.     Ha- 

competency  of  the  seller.    It  will  not  vens  v.  Bliss,  26  N.  J.  Eq.  363. 


302  INCIDENTS   OF   THE   CONTRACT. 

other  imperfections  of  title,  and  to  found  objections  upon  them, 
lie  is  entitled  to  satisfactory  explanations,  and  has  the  right 
to  call  upon  his  vendor  to  make  good  an}'-  defects.  This  is  ac- 
complished by  what  are  technically  termed  "requisitions."  If 
a  descent  is  shown,  but  not  in  a  satisfactory  manner,  and  a 
subsequent  deed  executed  by  tlie  heirs  at  law  of  the  person 
last  sei/.cd,  a  requisition  should  be  made  for  further  evidence 
touching  the  legitimacy  of  the  claim  of  title  thus  asserted. 
Partitions  among  heirs  by  the  mutual  interchange  of  deeds 
call  for  inquiry  where  a  minor's  rights  may  be  affected;  deaths 
and  marriages,  claims  for  dower  and  a  number  of  like  inci- 
dents may  all  call  for  inquiry,  and  serve  as  proper  foundations 
upon  which  to  lodge  objections. 

The  general  subject  of  this  chapter  is  inseparably  connected 
with  that  of  specific  performance,  and  the  details  of  the  sub- 
ject as  hereinafter  developed  are,  in  the  main,  properly  classed 
with  the  different  phases  of  specific  performance  whenever 
that  subject  is  treated.  But  inasmuch  as  these  objections  are 
usually  made  at  or  about  the  time  of  the  examination  of  the 
title,  the}^  seem  to  follow  in  a  sort  of  logical  sequence  at  this 
stage  of  the  work;  and  it  is  hoped  that  the  indulgent  reader 
will  see  no  incongruity  in  the  introduction  of  the  subject  at 
this  time,  but  will  kindly  permit  this  chapter  to  supplement 
the  succeeding  chapter  on  specific  performance,  despite  the 
fact  that  it  precedes  it  in  the  order  of  arrangement. 

The  terras  of  the  contract  of  sale  will,  in  many  instances,  de- 
termine the  question  of  title  when  raised ;  but  ordinarily,  while 
a  purchaser  will  not  be  compelled  to  accept  a  title  palpably 
defective,  he  cannot  justify  his  refusal  to  accept  by  mere 
captious  objections;  nor  is  it  sufficient  for  him,  when  the  juris- 
diction of  a  court  is  invoked  to  compel  him  to  perform  his 
contract,  merely  to  raise  a  doubt.  A  defect  in  a  record  title 
will,  under  most  circumstances,  furnish  a  defense  to  a  pur- 
chaser, particularly  where  it  affects  the  value  of  the  property 
or  would  interfere  with  its  sale,  and  thus  render  it  unmarket- 
able;' but  there  is  no  inflexible  rule,  in  the  absence  of  stipula- 

1  Shriver  v.  Shriver,  86  N.  Y.  requisites  necessary  to  give  it  valid- 
575.  If  a  written  contract  for  the  ity  and  to  make  it  binding  on  the 
sale  of  land  contains  all  of  the  other   vendor,  the  law  will  imply  an  agree- 


OBJECTIONS   TO   TITLE.  303 

tions  to  the  contrary,  tliat  a  vendor  must  furnish  a  perfect 
title  of  record,  and  it  has  frequently  been  held  that  defects  in 
the  record  or  paper  title  may  be  removed  by  parol  evidence.' 
Where,  however,  the  title  depends  upon  facts  incapable  of  sat- 
isfactory proof,  or  if  capable  are  not  so  proved,  objections 
will  properly  lie,  and  the  purchaser  will  be  under  no  obligation 
to  complete  his  contract. 

§  2.  A  marketable  title.  In  the  absence  of  any  stipula- 
tions relative  to  the  character  of  the  title  to  be  conveyed,  a 
"marketable  title"  is  always  presumed ;  that  is,  a  title  free 
from  flaws  or  serious  defect.  Such  a  title  should  extend  to 
show  a  full  and  perfect  right  of  property  and  present  posses- 
sion vested  in  the  vendor;-  it  should  embrace  the  entire  estate 
or  interest  sold,  which,  unless  otherwise  specified,  should  be 
the  fee,'  and  that  free  from  the  lien  of  all  burdens,  charges  or 
incumbrances.^  It  should  not  only  be  free  from  litigation,^ 
but  from  palpable  defects"  and  grave  doubts.'  It  should 
further  consist  of  both  the  legal  and  equitable  titles,^  and  be 
fairly  deducible  of  record.'' 

It  is  believed  that  the  foregoing  enumeration  fairly  answers 
all  the  reasonable  requirements  that  go  to  constitute  a  mar- 
ketable title,  particularly  as  this  term  is  understood  in  the 
United  States;  but  it  must  not  be  inferred  that  a  title  to  be 
marketable  must  possess  all  of  the  incidents  mentioned.  Thus, 
a  title  may  be  marketable  although  depending  on  presumption 
grounded  merely  on  the  lapse  of  time,  a  clear  adverse  posses- 
sion for  twent^^  years  making  a  title  which,  in  many  instances, 
a  purchaser  may  not  refuse.'"     But  in  every  instance,  however 

ment  by  liim   that  he  has  and  will  sgpeakman  v.  Forepaiigli,  44  Pa. 

give  to  the  purcliaser  a  good   title.  St.   363 ;  Jordan  v.   Poillon,  77  X.  Y. 

Winn  V.  Henry,  84  Ky.  48.  518. 

iHellreigel     v.    Manning,     97    N.  «*  Smith  v.  Robertson;  23  Ala.   312: 

Y.  56.  Holland   v.    Holmes,    14    Fla.    390: 

2  Delevan  v.  Duncan,  49  N.  Y.  485 ;  Jenkins  v.  Fahey,  73  N.  Y.  355. 

Davis  V.   Henderson,   17    Wis.    105;  "Scott     v.     Simpson,     11    Heisk. 

Jeffries  V.  Jeffries,  117  Mass.  184.  (Tenn.)  310;  Moore  v.  Appleby,    lOS 

3Taft  V.  Kessel,  16  Wis.  273;  Pow-  N.  Y.  237. 

ell  V.  Conant,  33  Mich.  396.  ^Taft  v.  Kessel,  16  Wis.  273. 

4  Roberts  v.  Bassett,  105  Mass.  407;  9  Martin  v.  Judd,  81  111.  488. 

Jones  v.  Gardner,  10  Johns.  (N.  Y.)  '0  Sherman  v.  Kane,  86  N.  Y.  57; 

266;  Davidson  V.  Van  Pelt,  15  Wis.  Ford  v.  Wilson,  35  Miss.  504:  Grant 

341.  V.  Fowler,  39  N.  H.  104.     Thus,  spe- 


30J:  INCIDENTS    OF   THE    CONTRACT. 

the  title  ma}'  be  derived,  it  must  be  free  from  reasonable 
doubt.'  If  it  is  open  to  judicial  doubt  it  is  not  marketable,  al- 
though what  is  sufficient  ground  for  judicial  doubt  is  not  to 
bo  conclusivel}'  reduced  to  fixed  and  determined  principles; 
for  that  depends  in  some  degree  upon  the  discretion  of  the  court. 
A  title  may  be  doubtful  because  of  the  uncertainty  of  some 
matter  of  fact  appearing  in  the  course  of  the  deduction  of  it; 
and  if,  after  the  vendor  has  produced  all  the  proofs  that  he 
can,  a  rational  doubt  still  remains,  the  title  is  not  marketable. 2 
A  j)urchaser  will  not  be  compelled  to  complete  his  purchase 
where  there  is  some  reasonable  ground  of  evidence  shown  in 
support  of  an  objection  to  the  title,  or  v^here  the  title  depends 
upon  a  matter  of  fact  which  is  not  capable  of  satisfactory 
proof,  or,  if  capable  of  that  proof,  yet  is  not  so  proved.'^  Nor 
will  the  courts  compel  the  specific  performance  of  a  contract 
by  the  purchaser  where  the  validity  of  the  vendor's  title  de- 
pends upon  a  doubtful  question  of  law,  where  others  having 
rights  dependent  upon  the  same  question  are  not  parties  to 
the  action.^  On  the  other  hand,  an  objection  cannot  be 
founded  on  unsubstantial  trifles;'^  and  a  bare  possibility  that 
the  title  may  be  affected  by  the  existing  causes  Avhich  may 
subsequently  be  developed,  when  the  highest  evidence  of  which 
the  case  admits,  amounting  to  a  moral  certainty,  is  given  that 
no  such  cause  exists,  is  not  to  be  regarded  as  a  sufficient 
ground  for  a  refusal  to  perform  the  contract.'' 

One  bound  by  an  executory  contract  to  purchase  land  need 
not  fulfill  his  contract  if  there  is  a  cloud  on  the  title.  The  de- 
fect  need  not  consist  of  an  outstanding  title  which  is  neces- 

cific  performance  of  an  asreeraent  to  v.  Conant,  33  Mich.  396;  Vreeland  v. 
buy  land  will  be  enforced  where  the  Blauvelt,  23  N.  J.  Eq.  483. 
title  tendered  is  based  on  adverse  2  it  seems  that  a  rational  doubt 
possession  and  payment  of  taxes  for  may  be  said  to  exist  when  a  court  of 
nearly  sixty  years,  there  being  no  law  would  not  feel  called  upon  to  in- 
outstanding  minorities  which  could  struct  a  jury  to  find  that  the  fact 
be  set  up  in  support  of  the  paper  title  existed  on  the  existence  of  which 
against  which  the  adverse  possession  vendor's  title  depends.  Emery  v. 
was  held.  Ottinger  v.  Strasburger,  Grocock,  6  Madd.  (Eng.  Ch.)  54. 
33  Hun  (N.  Y.).  466.  sghriver  v.  Shriver,  86  N.  Y.  575. 
'  Bensel  v.  Gray,  80  N.  Y.  517;  Jef-  ■<  Abbott  v.  James,  111  N.  Y.  673. 
fries  V.  Jeffries,  117  Mass.  184;  Lud-  5  Webb  v.  Chisholm,  24  S.  C.  487. 
low  V.  O'Niel,  29  Ohio  St.  182;  Mor-  eMoser  v.  Cochrane,  107  N.  Y.  35. 
rison  v.  Kinstra,  55  Miss.  76;  Powell 


OBJECTIONS   TO   TITLE.  305 

sarily  paramount;  ^  it  is  -suflicicnt  if  it  creates  a  doubt,^  or  raises 
a  question  which  can  only  be  settled  by  litigation.'  Nor  need 
such  a  title  be  positively  bad ;  it  is  enough  that  it  is  subject  to 
so  much  doubt  that  a  purchaser  ou^ht  not  to  be  compelled  to 
accept  it.^  It  ma}'  still  bo  a  valid  title  though  charged  with 
incumbrance;'*  but  where  the  agreement  does  not  mention 
the  title  to  be  given,  an  implication  arises  that  it  is  to  be  free 
from  incumbrances;''  nor  will  the  purchaser  be  bound  to  take 
it  subject  to  easements.' 

A  marketable  title  should  carry  with  it  an  assurance  of 
security  in  the  possession  and  enjoyment  of  the  land;  and  hence 
it  follows  that  a  purchaser  should  not  be  required  to  complete 
his  bargain  where  there  is  a  reasonable  chance  for  any  person 
to  lawfully  raise  a  question  against  the  title.  It  is  immaterial 
that  the  danger  to  the  purchaser  to  all  seeming  is  very  slight 
and  very  remote;  it  is  enough  that  it  exists,  and  that  while  it 
exists  as  a  matter  of  law  as  well  as  of  fact  it  may  operate 
to  the  purchaser's  detriment.  It  would  seem,  therefore,  that 
however  strong  the  probability  may  be  that  the  objectionable 
matter  will  never  be  asserted  against  the  estate,  3'et  as  long  as 
it  amounts  to  no  more  than  a  probability  the  title  cannot  in 
any  just  sense  be  said  to  be  marketable.  It  is  true  that  a  title 
free  from  reasonable  doubt  may  be  forced  upon  an  unwilling 
purchaser;  but  this  is  only  where  there  is  a  doubt  as  to  whether 
there  exists,  in  law  or  in  fact,  any  defect  in  the  title.  "When 
it  is  ascertained  that  there  is  an  existing  defect,  the  purchaser 
will  not  be  compelled  to  perform  merely  because  it  is  doubtful 
whether  the  defect  will  even  incommode  him.^ 

§  3.  "  Satisfactory  "  title.  It  is  by  no  means  an  unusual 
practice  for  parties  to  stipulate  in  their  agreements  for  sale  for 
the  production  of  a  "satisfactor}' "  title,  or  a  title  "satisfac- 
tory "  to  the  vendee's  attorneys;  and  even  where  no  mention 
of  this  kind  is  made  in  speaking  of  the  title  to  be  produced, 

1  EsteU  V.  Cole,  62  Tex.  695.  ^  Coal  v.  Iliggins,  23  N.  J.  Eq.  308. 

-Jeffries  v.  Jeffries,  117  Mass.  184;  •'Newark     Saving    Institution     v. 

Gill  V.  Wells,  59  Md.  493;  Powell  v.  Jones,  37  N.  J.  Eq.  449. 

Conant,  33  Mich.  390.  '  Wlieeler  v.  Tracy,  49  N.  Y.  Sup. 

3  Butts  V.  Andrews,  136  Mass.  221;  Ct.  208. 

Ciiarleston  v.  Blohnie,  15  S.  C.  124.  **  Moore  v.  Appleby,  108  N.  Y.  237; 

*  Richmond  v.  Gray,  3  Allen  (Mass.),  Brooklyn  Park  Com'rs  v.  Armstrong, 

25.  45  N.  Y.  234. 
£0 


306  INCIDENTS    (.)!•'    THE    CONTRACT. 

yet  where  provision  is  made  for  the  return  or  forfeiture  of  the 
deposit  it  is  usual  to  stipuhite  that  if  the  title,  upon  examina- 
tion, should  prove  "unsatisfactory,"  the  agreement  shall  be 
canceled.  It  is  dilTicult  to  announce  the  exact  effect  of  stipu- 
lations of  this  kind,  or  to  state  whether  the  power  of  pronounc- 
ing his  dissatisfaction  is  subject  to  an  arbitrary  exercise  by  the 
party  in  Avhose  favor  it  is  extended,  or  exists  only  where  in 
reason  and  good  conscience  he  may  be  dissatisfied.  The  au- 
thorities upon  this  point  are  conflicting,  and  the  question  may 
fairly  be  said  to  be  one  of  doubt. 

In  a  majorit}''  of  the  most  pronounced  cases  the  question  has 
arisen  in  connection  with  sales  of  chattels  or  the  fabrication  of 
articles  of  a  personal  nature  largely  dependent  upon  skill  and 
abilit3^  In  one  class  of  cases  it  is  held  that  the  person  to 
whom  this  privilege  is  given  has  no  right  to  say,  arbitrarily 
and  without  cause,  that  he  is  dissatisfied,^  while  the  other  class 
as  positively  asserts  the  doctrine  that  when  the  agreement  is 
to  make  and  furnish  an  article  to  the  satisfaction  of  the  person 
for  whom  it  is  intended,  he  alone  is  the  judge  as  to  whether 
the  article  is  satisfactory;  and  it  is  not  a  compliance  with  the 
contract  to  prove  that  he  ought  to  have  been  satisfied.^  In 
nearly  all  of  these  cases  it  is  said  that  where  the  refusal  to  ac- 
cept is  because  of  dissatisfaction  the  objection  should  be  made 
in  good  faith;  yet  this  is  a  very  diflicnlt  matter  to  determine 
where  the  sole  arbiter  is  the  objecting  party  himself,  for  he 
may  refuse  through  the  merest  caprice,  and  yet  not  be  charge- 
able with  bad  faith. 

There  is  no  reason  of  public  policy  which  prevents  parties 
from  contracting  that  the  decision  of  one  or  the  other  shall  be 
conclusive;  and  the  weight  of  authority  as  well  as  reason  would 
seem  to  support  the  doctrine  that  parties  must  abide  by  their 
contracts  as  they  have  made  them.  If  the  vendor  has  agreed 
to  furnish  an  article  that  shall  be  satisfactor_y  to  the  vendee,  it 
would  seem  that  he  constitutes  the  latter  the  sole  arbiter  of  his 
own  satisfaction.  Some  cases  announce  a  reasonable  modifi- 
cation of  the  rule,  to  the  effect  that  the  dissatisfaction  must  be 

J  See  Daggett  v.   Johnson,  49  Vt.  Brown  v.  Foster,  113  ]Mass.  136;  Mc- 

345;  Manufacturing  Co.  v.  Brush,  43  Carren   v.   McNulty,  7  Gray  (Mass.), 

Vt.  528.  139;  Gibson  v.  Cranage,  39  Mich.  49. 

2Zaleski  v.   Clark,   44  Conn.  218; 


OBJECTIONS   TO   TITLE.  307 

real  and  not  feigned,  and  that  the  vendee  is  not  at  liberty  to 
say  he  is  dissatisfied  when  in  reality  he  is  not  —  in  other  words, 
that  his  discontent  must  be  genuine;'  yet  the  difficulty  of  ar- 
riving at  mental  processes  is  so  great  that  the  modification  as 
suggested  is  practically  of  little  avail;  and  even  the  same  class 
of  cases  which  hold  this  doctrine  also  maintain  that,  while  the 
vendee  is  bound  to  act  honestlv,  it  is  not  cnouirh  to  show  that 
he  ought  to  have  been  satisfied  and  that  his  discontent  was 
without  good  reason. 2 

It  ma}'  be  said  that,  where  the  agreement  simply  is  to  pro- 
duce something  that  shall  be  "  satisfactory,"  without  indi- 
cating the  person  to  whom  it  shall  be  satisfactory,  the 
stipulation  is  doubtful,  or  that  it  should  be  satisfactory  to  any 
reasonable  person.  But  this  would  be  doing  violence  to  lan- 
guage; for,  as  has  been  well  remarked,  "when  we  speak  of 
making  a  thing  satisfactory,  we  mean  it  shall  be  satisfactory 
to  the  person  to  whom  we  furnish  it.  It  would  be  nonsense 
to  say  that  it  should  be  satisfactory  to  the  vendor.  It  would 
be  indefinite  to  say  it  should  be  satisfactory  to  a  third  person 
without  designating  the  person.  It  can  be  intended  that  it 
shall  be  satisfactory  to  the  person  who  is  himself  interested  in 
its  satisfactory  operation,  and  that  is  the  vendee." '  And  this 
is  the  view  generally  taken.* 

It  has  been  suggested  that  the  force  of  the  cases  last  men- 
tioned may  be  lessened  by  the  fact  that  questions  relative  to  the 
title  to  land  are  such  as  are  peculiarly  within  the  ])Ower  and 
duty  of  a  court  to  determine.-^  Yet  in  principle  it  can  make 
but  little  difference  whether  the  transaction  relates  to  real  or 
personal  property ;  and  so,  where  the  terms  of  sale  provided 
that  if  the  purchaser,  upon  examination,  should  not  be  satis- 
fied with  the  title,  he  need  not  take  the  property,  it  was  held 
that  if  the  purchaser  in  good  faith  was  not  satisfied  with  the 
title,  he  would  not  be  compelled  to  complete  the  purchase, 
notwithstanding  the  court  pronounced  the  title  good.'' 

•See  Hartford  Mfg.  Co.  v.  Brush,  Minn.    32;  Singerly    v.  Tliayer,    108 

43  Vt.  528.  Pa.  at.  291. 

-Daggett   V.  Jolinson.  49  Vt.  345;  ^Note    by   Savage,   25    Am.    Law 

L,.  nil  V.  R'y  Co.  60  Md.  404.  Reg.  19. 

'  Brown,  J.,  in  Campbell  Press  Co.  •>  Averett  v.  Lipscombe,  7G  Va.  404; 

V   Tliorp,  1  Law  Rep.  (Mich.)  645.  Taylor  v.  Williams,  45  Mo.  80. 

^  McCormick  Co.  v.  Chesroun,  33 


308  INCIDENTS    OF    THE    CONTRACT. 

An  apparently  opposing  case  will  be  found  among  the  ear- 
lier decisions  in  New  York,^  where  a  contract  for  the  purchase  of 
real  estate  provided  that  the  purchaser  should  pay  for  the  same 
three  months  after  he  should  be  well  satisfied  that  the  title 
was  good.  Payment  was  refused  on  the  ground  of  outstand- 
ing title,  and  the  purchaser  alleged  dissatisfaction.  The  proof 
showed  that  the  claim  of  outstanding  title  was  unsound. 
Kent,  C.  J.,  after  demonstrating  the  untenability  of  defend- 
ant's objection  for  this  reason,  then  said:  "Nor  will  it  do  for 
the  defendant  to  say  he  was  not  satisfied  with  his  title  with- 
out showing  some  lawful  incumbrance  or  claim  existing  against 
it.  A  simple  allegation  of  dissatisfaction,  without  some  good 
reason  assigned  for  it,  might  be  a  mere  pretext,  and  cannot  be 
regarded.  If  the  defendant  were  left  at  liberty  to  judge  for 
himself  when  he  was  satisfied,  it  would  totally  destroy  the 
obligation,  and  the  agreement  would  be  absolutely  void;" 
and  at  the  same  time  laid  down  a  principle  which  the  courts 
of  New  York  have  since  followed  on  a  number  of  occasions, 
to  wit:  "That  which  the  law  shall  say  a  contracting  part}' 
ought,  in  reason,  to  be  satisfied  with,  that  the  law  will  say  he 
is  satisfied  with."^ 

§  4.  Claims  of  title.  There  is  a  recognized  distinction  be- 
tween an  agreement  for  the  conveyance  of  a  specific  tract  of 
land  and  an  agreement  to  simply  convey  the  vendor's  right, 
title  and  claim  thereto.  Imperfect  titles,  claims  of  title,  con- 
flicting and  unconsummate  equities  always  abound  in  pro- 
fusion in  ever}'  locality  where  real  estate  exhibits  any  consid- 
erable activity ;  and  such  claims  and  equities  are  often  made 
the  subject  of  sale.  "When,  therefore,  a  vendor  has  bound 
himself  to  convey  not  the  land  but  his  right,  title  and  claim 
to  the  land,  there  is  no  implication  of  a  covenant  that  he  has 
a  good  title;  nor  can  the  vendee  refuse  to  consummate  the 
agreement  by  founding  an  objection  to  the  title  offered.  If 
the  vendor  offers  to  convey  all  his  claim,  whatever  it  may  be, 
he  tenders  to  the  vendee  the  very  subject  of  the  contract;  the 
vendee  in  such  case  buys  at  his  own  risk,  and  cannot  be  heard 

1  Folliard  v.  Wallace,  2  Johns.  (N.  sell  v.  Ins.  Co.  76  N.  Y.  115,  but  not 

Y.)  395.  with  reference  to  the  subject  under 

^The  principle  is  affirmed  in  Brook-  discussion, 
lyn  V.  R.  R.  Co.   47  N.  Y.  475 ;  Mie- 


OBJECTIONS    TO    TITLE.  309 

to  defend,  when  called  on  for  the  price,  that  the  title  offered  is 
defective.'  So,  also,  if  a  vendor  does  not  pretend  to  have  a 
clear  title,  but  expressly  sells  such  as  he  has,  the  vendee  will 
be  obliged  to  accept  the  same  without  first  requiring  the 
vendor  to  show  a  clear  title.- 

§  5.  Title  of  record.  The  question  seems  to  have  been  pro- 
ductive of  much  discussion  as  to  whether  a  purchaser  who  has 
contracted  for  a  record  title  will  be  compelled  to  accept  a  title 
depending  upon  adverse  possession  under  the  statute  of  limita- 
tions. Of  all  known  titles  to  land,  beyond  a  mere  naked  pos- 
session, which  are  ^>';7';na  facie  good,  there  is  perhaps  none 
recognized  by  law  more  doubtful  and  uncertain  than  those  de- 
pending for  their  validity  upon  an  adverse  possession.'  For 
this  reason  such  titles  are  justly  regarded  with  suspicion  and 
accepted  with  caution;  and  though  the}''  maybe  for  all  practi- 
cal purposes  indefeasible  at  law  or  in  equity  and  as  strong  as 
a  title  by  grant,  yet,  where  the  contract  calls  for  a  good  title 
as  shown  by  the  records,  an  objection  to  a  title  based  upon 
extraneous  facts  and  resting  in  parol  is  well  taken.  The  fact 
that  the  proposed  title  is  practically  unassailable  carries  no 
weight  in  the  consideration  of  a  question  of  this  character.*  It 
is  sufficient  that  such  title  is  substantially  different  from  the 
one  contracted  for,  and  the  motives  and  fancies  of  mankind 
are  so  various  that  the  law  which  recognizes  the  right  of  par- 
ties to  make  just  such  contracts  as  they  choose  will  not  call 
upon  a  man  who  has  contracted  to  purchase  one  thing  to  ex- 
plain why  he  refuses  to  accept  another.*  To  compel  a  pur- 
chaser to  take  that  which  he  never  agreed  to  accept  would  be 


1  So  held  where  the  contract  was  cient  conveyance,  with  full  warranty 

that  the  vendor,  in  consideration  of  only  against "  his  heirs  and  personal 

a  stated  price,  agreed  to  convey  all  representatives,  he  is  bound  only  to 

bis  "  right,  title  and  claim  "  in  a  cer-  convey  such  title  as  he  has;  but  that 

tain   tract  containing  five  hundred  the  rule  would  be  otherwise  where  his 

acres,  which  price  vendee  agreed  to  agreement  is  for  a  good  and  sufficient 

pay,  and  afterwards  the  vendor  tend-  conveyance.     Thompson  v.  Ilawley, 

ered    a  deed    purporting  to  convey  14  Or.  199. 

"  all  his  right,  title  and  claim."   Her-  'Brown  v.   Cannon,  5  Gilm.  (III.) 

rold  V.  Blackburn,  5G  Pa.  St.  103.  182. 

2Broyles  v.  Bee,  18  W.  Va.  514.    It  •»Noyes  v.  Johnson,  i;59  Mass.  436. 

has  been  held  that  where  the  vendor  ^Page  v.  Greeley,  75  111.  400. 
agrees  to  make  a  "  good  and  suffi- 


310  INCIDENTS   OF   THE   CONTKAOT. 

manifestly  unjust,  no  matter  what  might  be  its  character  or 
value. 

It  is  of  frequent  occurrence  in  those  states  where  title  is  de- 
raigned  from  the  federal  government  to  stipulate  for  an  ab- 
stract showing  a  devolution  of  title  from  the  United  States  to 
the  person  proposing  the  same.  In  the  later-formed  states  this 
is  particularly  the  case.  The  same  general  principles  we  have 
just  been  considering  apply  with  equal  force  to  stipulations 
of  this  character.  As  where  the  vendor  agreed  "  to  show  and 
present  a  perfect  chain  of  title  to  said  property  from  the 
United  States  government,"  and  did  present  an  abstract  show- 
ing a  government  patent  with  successive  conveyances  connect- 
ing his  title,  yet  it  appearing  further  that  the  land  covered  by 
said  patent  had  been  previously  confirmed  in  the  heirs  of  a  de- 
ceased person  by  deed  of  confirmation  of  the  territorial  gov- 
ernor, pursuant  to  act  of  congress,  and  that  in  consequence 
the  United  States  possessed  no  interest  in  the  land  which  it 
could  sell  or  patent,  it  was  held  that  the  patent  was  void  as  a 
conveyance  and  colorable  only ;  and  that  notwithstanding  that 
such  patent  might  be  resorted  to  in  connection  with  pa3'ment 
of  taxes,  possession,  etc.,  as  color  of  title,  it  did  not  show  the 
title  intended  by  the  language  of  the  parties.  That  the  title 
thus  shown  was  a  good  defensive  title  was  not  denied;  but  the 
court  ruled  that  the  only  rational  construction  that  could  be 
placed  upon  the  stipulation  required  the  production  of  a  chain 
of  title  from  the  United  States  government  which  should  be 
perfect,  and  that  this  could  only  mean  the  production  of  the 
successive  conveyances,  commencing  with  the  government 
patent,  each  being  a  perfect  conveyance  of  the  title,  down  to 
and  including  the  person  proposing  the  same.  To  have  com- 
plied with  the  stipulation  it  would  have  been  necessar}^  to  have 
shown  a  title  derived  through  the  heirs  of  said  deceased  per- 
son; but  the  claim  being  based  upon  the  invalid  patent,  which 
was  simply  a  link  in  a  colorable  chain  of  title,  was  not  what 
the  purchaser  had  bargained  for.' 

§  6.  Title  by  adverse  possession  and  limitation.  A  title 
deducibie  of  record  must  under  our  laws  be  more  reliable  and 

1  Payue  v.  Markle,  89  111.  66.     In   the  principle  applies  to  an  executory 
this  case  the  questions  arose  after  con-    contract  as  well, 
veyance  and  upon  tlie  abstract,  but 


OBJECTIONS   TO   TITLE.  311 

consequentl}"  more  desirable  than  one  depending  upon  a  va- 
riety of  extrinsic  circumstances  to  be  established  by  parol  evi- 
dence. This  is  a  generally  recognized  principle  in  all  real 
estate  transactions;  and  intending  purchasers  are  usually  tena- 
cious upon  this  point,  and  observant  to  see  that  the  stipulations 
of  the  contract  embody  provisions  calling  for  the  production 
of  such  title.  Indeed,  this  is  one  of  the  vital  points  of  the  con- 
tract, and  a  purchaser  who  desires  such  a  title  should  have 
that  fact  duly  incorporated.'  But  wliere  the  purchaser  does 
not  see  fit  to  stipulate  as  to  the  character  of  the  title  lie  is  to 
receive,  or  if  no  reference  is  made  thereto,  while  the  obligation 
of  the  vendor  to  furnish  a  marketable  title  would  be  raised  by 
implication,  there  would  be  no  obligation  on  his  part  to  fur- 
nish a  record  title. 

A  purchaser  may  be  compelled  to  take  a  title  founded  on 
adverse  possession  under  color  of  title,  if  there  is  no  reason- 
able doubt  of  the  superiority  of  such  title,-  but  not  where  there 
are  circumstances  which  may  prevent  the  possession  from  being 
adverse." 

§  7.  Ancestral  titles.  Title  by  descent  was  formerly  con- 
sidered the  superior  title,  and  under  the  peculiar  conditions 
which  attended  the  devolution  from  ancestor  to  heir  was  prob- 
ably more  certain  and  indefeasible  than  that  acquired  by  any 
of  the  modes  of  purchase  except  the  original  grant  from  the 
sovereign.  But  in  the  United  States  this  order  has  been  re- 
versed ;  and  while  a  title  so  derived  is  in  every  way  as  effectual 
as  one  obtained  by  purchase,  it  is  often  attended  with  so  many 
doubtful  incidents  that  such  titles  are  now  generally  regarded 
with  suspicion  and  accepted  only  with  the  greatest  caution. 

'A  purchaser  entitled    under  his  507;  Shriver  v.  Shriver,  86  N.  Y.  575. 

contract  to  a  good  title  of  record  is  Specific  performance  will  be  enforced 

not  bound  to  accept  a  title  by  adverse  where  the  title  tendered  is  based  on 

possession  depending  upon    a   long  an  adverse  possession  and  payment 

and  difficult  investigation   of  facts,  of  taxes  for  nearly  sixty  years,  there 

although  it  may  be  good.     Noyes  v.  being     no     outstanding     minorities 

Johnson,  139  Mass.  430.  which  could  be  set  up  in  support  of 

^Crowell  V.    Druley,    19  111.  App.  the  paper  title  against  which  the  ad- 

509.     A  purchaser  may  be  compelled  verse  possession  was  huld.     Ottiuger 

to  accept  a  title  founded  on  an  ad-  v.  Strasburger,  33  Hun  (N.  Y.),  466. 

v^-rse  possession  for  ninety  years.  ^Shriver  v.  Shriver,  86  N.  Y.  575. 
Abrams  v.  Rhoner,  44  Hun  (N.  Y.), 


312  INCIDENTS    OF   THE   CONTRACT. 

Where  proper  proof  of  heirship  is  made,  and  particularly  where 
an  adjudication  has  been  had,  and  it  satisfactorily  appears  that 
the  title  of  the  heir  is  unembarrassed  by  ancestral  debts  or 
unfulfilled  obligations,  no  serious  objection  will  usually  lie; 
but  in  the  absence  of  an}^  proper  showing  a  purchaser  is  justi- 
fied in  refusing  the  title  unless  by  some  agreement  the  defect 
of  proof  has  been  waived.  An  objection  is  well  taken  where 
there  is  at  least  a  probability'-  that  certain  persons  whose  deed 
is  tendered  to  make  a  title  are  not  the  sole  and  only  heirs  of 
their  ancestor,  and  a  purchaser  will  not  be  required  to  accept 
a  title  so  doubtful.^ 

§  8.  Spurious  deeds.  A  purchaser  has  a  right  to  demand 
a  valid  title  by  a  regular  derivation  of  right  from  some  un- 
doubted and  unquestioned  source;  and  where  the  title  as  exhib- 
ited depends  upon  spurious  deeds  or  other  muniments  whose 
genuineness  and  authenticity  is  questioned,  the  purchaser  may 
well  object  to  a  consummation  of  the  trade  until  by  proper 
proof  the  objection  is  shown  to  be  untenable.  An  ancient  deed 
will  usually  be  received  without  proof  of  execution  when  free 
from  suspicion  upon  its  face,  and  when  offered  to  support  a 
title  concurrent  with  possession ;  but  where  a  deed  is  without 
acknowledgment  or  other  proof,  or  is  impeached  by  other  and 
extraneous  testimony,  unless  the  possession  of  the  claimant 
thereunder  has  been  of  such  a  character  and  continued  for  such 
length  of  time  as  to  create  a  valid  title  by  mere  force  of  ad- 
verse possession,  the  title  so  offered  is  so  far  uncertain  that  a 
court  of  equity  would  refuse  to  lend  its  aid  to  enforce  the  con- 
tract, while  the  questions  thus  raised  being  essentially  ques- 
tions of  fact  should  be  submitted  to  the  jury  for  determination.^ 

§  9.  Hazard  of  litigation.  A  purchaser  will  never  be  com- 
pelled in  equity  to  accept  a  title  that  will  expose  him  to  the 
hazard  of  litigation.  The  title  should  not  only  be  sufficient  to 
enable  him  to  hold  the  land,  but  to  hold  it  in  peace;  and 
where  the  circumstances  attending  the  devolution  of  title  are 
such  as  to  casta  doubt  upon  its  character,  an  objection  for  this 
reason  is  well  founded.'    A  purchaser  in  every  sale,  unless  he 

1  Walton  V.  Meeks,  41  Hun  (N.  Y.),  ^  Moore  v.  Appleby,  108  N.  Y.  237 ; 
311.  Tillotson  v.  Gesner,  33  N.  J.  Eq.  313. 

2  See  Seymour  v.  De  Lancey,  Hop.  This  was  a  bill  for  specific  perform- 
Ch,  (N.  Y.)  436.  ance.    The  complainant  and  defend- 


OBJECTIONS   TO   TITLE.  313 

specially  stipulates  to  the  contrary,  has  a  right  to  expect  that 
he  will  acquire  a  good  title,  and  the  law  presumes  that  he  pur- 
chases with  that  object  in  view.  He  should  not,  therefore,  be 
left  upon  receiving  his  deed  to  the  uncertainty  of  a  doubtful 
title  or  the  hazard  of  a  contest  with  other  parties,  which  may 
serioush'  affect  the  value  of  the  property  if  he  desires  to  sell 
the  same.' 

But  while  the  foregoing  {propositions  have  become  estab- 
lished beyond  dispute,  it  must  nevertheless  ap{)ear  that  the 
objection  is  not  founded  on  mere  caprice  or  unsubstantial 
trifles;^  hence  a  bare  possibility  that  the  title  may  be  af- 
fected by  the  existing  causes  which  may  subsequently  be 
developed  when  the  highest  evidence  of  which  the  case  admits, 
amounting  to  a  moral  certainty,  is  given  that  no  such  cause 
exists,  is  not  to  be  regarded  as  a  sufficient  ground  upon  which 
to  found  an  objection,  or  for  inducing  a  court  to  decline  to 
compel  a  purchaser  to  perform  his  contract.^ 

ant  had  agreed  to  exchange  lands,  in  the  description  of  the  land  in  a 
It  was  objected,  inter  alia,  that  com-  former  conveyance  through  wliich 
plainant  held  her  title  from  her  son-  the  vendor  holds,  the  title  as  to  a 
in-law  by  a  voluntary  conveyance  part  of  the  land  is  so  doubtful  that  it 
made  to  defraud  his  creditors  and  may  expose  the  vendee  to  litigation 
voidable  by  them ;  that  a  judgment  on  the  part  of  a  third  person,  or 
for  deficiency  was  docketed  against  where  for  such  reason  the  title  is  not 
him  a  few  days  before  the  convey-  marketable.  Smith  v.  Turner,  50 
ance  from  liim  to  complainant  was  Ind.  367;  Linn  v.  McLean,  80  Ala. 
made;  tiiat  tlie  title  was  assailable  b}'  360.  A  purchaier  is  justified  in  re- 
his  creditors.  Ilehl,  where  there  is  fusing  to  take  a  title  founded  on  par- 
a  conveyance  of  land,  voluntary  on  tition  proceedings  to  which  remain- 
its  face,  made  by  a  defendant  just  der-men  were  not  made  parties, 
before  a  judgment  for  a  large  sum  is  Moore  v.  Appleby,  108  N.  Y.  237. 
rendered  against  him,  which  would  ^  Webb  v.  Clhisholm,  24  S.  C.  487. 
be  a  lien  on  the  land  if  such  convey-  •'As  where  purchaser  refused  to 
ance  had  not  been  made,  and  the  consummate  a  sale  and  sued  for  the 
evidence  fails  to  show  by  strong  recovery  of  money  paid  by  him  on 
proof  that  it  was  made  in  good  faith  the  execution  of  the  contract  on  the 
and  for  a  valuable  ct)nsideration,  the  ground  that  defendant  inherited  the 
specific  performance  of  an  agreement  property  from  C,  who  died  within 
with  the  vendee  for  the  purchase  of  three  years  intestate;  that  the  admin- 
the  land  will  not  be  enforced.  istration  of  his  estate  had  not  been 
1  Jordan  v.  Poillon,  77  N.  Y.  518.  closed  and  plaintiflf  would  have  to 
A  purchaser  of  real  estate  cannot  be  take  the  property  subject  to  the 
required  to  accept  a  conveyance  debts  of  the  intestate,  if  there  should 
thereof  where,  because  of  a  mistake  be  any  after  liis  personal  estate  was 


314:  INCIDENTS    OF   TUE   CONTRACT. 

It  is  further  to  be  observed  that  the  doctrine  that  equity 
will  not  compel  a  party  to  accept  a  title  which  may  be  exposed 
to  litigation  does  not  apply  when  no  question  of  fact  is  in- 
volved, and  all  parties  in  interest  are  before  the  court.^ 

§  10.  Pending  litigation.  An  objection  will  lie  where  the 
title  to  the  property  forming  the  subject  of  the  sale  is  involved 
in  litigation,^  or  where  proceedings  of  a  legal  character  are 
then  pending  to  subject  the  property  to  any  liens,  servitudes 
or  burdens.  Thus,  the  pendency  of  condemnation  proceedings 
is  such  a  defect  in  title  that  the  vendee  is  not  bound  to  take 
the  property.' 

§  11.  UnsJitisfled  judgments.  If  an  examination  of  the 
title  discloses  the  fact  that  there  are  subsisting  judgments  out- 
standing against  the  vendor  which  constitute  liens  on  the 
land,  the  purchaser  may  properly  object  to  the  title  for  that 
reason,  and  may  successfully  defend  a  suit  for  specific  per- 
formance or  an  action  for  the  purchase  money.  Such  a  title  is 
clearly  defective. 

But  while  the  authorities  are  clear  that  equity  will  not  com- 
pel a  vendee  to  take  an  imperfect  or  defective  title,  3'et  cases 
of  high  authority  are  to  be  found  in  which  a  pecuniary  charge 
against  which  adequate  security  has  been  given  has  been 
held  not  to  constitute  a  defect  of  title.  Thus,  where  a  vendor 
contracted  to  sell  a  house  and  lot,  the  fact  that  at  the  date 
of  the  contract  there  was  a  judgment  against  the  vendor 
from  w^hich  he  had  entered  an  appeal,  and  given  bond  wdth 
ample  security  to  pay  the  amount  of  the  judgment,  with  costs, 
in  case  he  should  fail  to  prosecute  his  appeal  with  effect,  was 
held  not  to  constitute  a  defect  or  incumbrance  upon  the  title 
which  would  prevent  a  specific  execution  of  it.* 

Usually,  however,  a  purchaser  of  land  who  is  entitled  under 

exhausted ;  also  the  possibility  of  the  ^  Cheseman     v.      Cummings,     142 

discovery  of  a  will  within  four  years  Mass.  65. 

after  the  death,  which  would  govern  -  Linn  v.  McLean,  80  Ala.  3C0. 

the  disposition  and  render  a  convey-  3  Cavenaugh  v.  McLaughlin,  35  N. 

ance    void.      Held,    that    to    entitle  W.  Rep.  (Minn.)  576. 

plaintiff  to  relief  it  was  necessary  for  *  Brewer  v.   Herbert,   30  Md.  301 ; 

him  to  show  debts,  and  an  insuffi-  Tiernan  v.  Roland,  15  Pa.    St.  441; 

cient  personal  estate  left  by  C.    Moser  Thompson   v.    Carpenter,  4  Pa.   St. 

V.  Cochrane,  107  N.  Y.  35.     And  see  133. 

Webb  V.  Chisholm,  24  S.  C.  487. 


^      OBJECTIONS    TO    TITLE.  .'JlS 

Ills  contract  to  a  perfect  title  cannot  be  compelled  to  perform 
his  agreement,  if  the  property  purchased  be  subject  to  judg- 
ment lien  under  which  he  is  obli'^ed  to  take  the  risk  of  havinir 
his  property  afterward  subjected  to  the  payment  of  the  judg- 
ment, notwithstanding  that  a  supersedeas  bond  may  have  been 
given.  Nor  will  the  fact  that  the  vendor  or  judgment  debtor 
is  possessed  of  ample  ])roperty  which  may  first  be  exhausted 
before  subjecting  the  property  sold  be  a  sullicicnt  answer  to 
an  objection  for  this  reason;  for,  while  such  may  be  the  general 
rule,  yet  it  may  not  be  certain  that  equity  would  compel  the 
judgment  creditor  to  first  exhaust  the  property  remaining  in 
the  judgment  debtor  before  resorting  to  that  acquired  by  the 
purchaser,  and  in  any  event  he  should  not  be  required  to  as- 
sume either  the  risk  or  expense  of  prosecuting  an  action  tp 
compel  the  judgment  creditor  to  seek  satisfaction  out  of  other 
jiropert}''  of  the  judgment  debtor. 

An  objection  for  this  reason,  therefore,  must  usually  be  held 
to  be  well  taken;  and  such  objection  will  be  sustained  unless  it 
is  possible  to  protect  the  purchaser  against  the  hazard  of  loss  or 
inconvenience  by  decree  providing  for  the  application  of  the 
purchase  money  to  the  discharge  of  the  judgment,  or  some 
other  equally  effective  method.^ 

§  12.  Outstanding  incumbrances.  An  outstanding  incum- 
brance of  any  kind,  for  which  no  provision  has  been  made  in 
the  contract  of  sale,  forms  an  insuperable  objection  to  the 
consummation  of  the  agreement.  Thus,  the  existence  of  a 
mortgage  upon  the  property  relieves  the  vendee  from  the  obli- 
gation of  performing  his  part  of  the  agreement  unless  upon 
objection  made  the  mortgage  is  canceled;  and  the  fact  that 
the  mortgage  was  recorded,  and  that  the  vendee  therefore 
had  notice  of  the  same,  is  immaterial  where  the  true  meaning 
and  import  of  the  contract  is  to  convey  an  indefeasible  estate.- 
So,  also,  if  at  the  time  of  the  contract  there  is  a  lease  out- 
standing which  was  unknown  to  the  vendee,  he  is  not  bound, 
but  ma}'  rescind  the  contract,  the  vendor  not  being  in  a  situa- 
tion to  give  a  perfect  title.''     Nor  will  a  purchaser  be  com- 

1  Walsh  V.  Barton,  24  Ohio  St.  28.    tract  and  recover  back  the  money 

2  If  in  such  case  the  vendee  has  which  he  has  paid.  Judsou  v.  Wass, 
paid  any  part  of  the   consideration    11  Johns.  (N.  Y. )  525. 

money,  he  may  disaffirm  the  con-       ^Xucker  v.  Woods,  12  Johns.  (N.Y.) 


310  INCIDENTS   OF   THE   CONTRACT. 

pellecl  to  accept  a  title  which  may  be  incumbered  with  a 
condition,  it  being  doubtful  whether  the  condition  is  or  is  not 
valid. ^  And  generally,  if  from  the  vendor's  negligence  or  de- 
fault the  property  becomes  incumbered  by  judgments,  taxes, 
forfeitures  or  otherwise  before  the  time  for  conveying  the 
same  or  before  he  offers  to  perform  his  contract,  he  cannot 
insist  on  performance  by  the  other  party  until  he  relieves  the 
title  from  such  subsequent  incumbrances.^ 

A  restriction  upon  the  power  of  alienation  or  a  reservation 
to  a  former  owner  of  a  right  of  repurchase  for  a  certain  time 
is  an  incumbrance  -which  diminishes  the  value  of  the  title;  and 
a  purchaser  who  has  contracted  to  buy  the  premises  without 
notice  of  the  existence  of  such  an  incumbrance  will  not  be 
compelled  to  take  the  property  subject  thereto,  or  at  least  not 
without  a  proper  allowance  therefor.^ 

Where  there  are  trifling  incumbrances  upon  the  title  ^  which 
were  known  to  the  vendee  at  the  time  he  contracted  to  pur- 
chase, it  has  been  held  that  a  specific  performance  will  be  de- 
creed without  compensation;^  and  wdiere  the  purchaser  enters 
into  possession  under  the  contract,  knowing  that  there  is  a 
slight  defect  in  the  vendor's  title  or  slight  incumbrance  upon 
it,  he  will  be  held  in  most  cases  to  have  waived  it.^  The 
mere  fact  of  entry  does  not  of  itself,  however,  amount  to 
waiver;  there  must  be  other  circumstances,  such  as  show  that 
the  vendee  had  a  knowledge  of  defects,  and  intended  to  accept 
such  title  as  could  be  made,  relying  upon  the  covenants  for 
redress.' 

If  a  purchaser  has  contracted  for  a  title  free  from  all  incum- 
brances he  cannot  be  compelled  to  accept  a  title  wherein  the 
use  of  the  property  or  any  part  thereof  is  restricted  to  spe- 

190.     Or  if  it  was  known  that  the       2  Cooper  v.  Tyler,  46  111.  462. 
property  was  subject  to  a  lease,  yet       3  Winne  v.  Reynolds,  6  Paige  (N. 
if  no  mention  was   made  that  the   Y.),  407. 

tenant  had  the  right  to  remove  a       ■*  As  the  reservation  of  a  barley- 
valuable  building  from  the  land,  the   corn  rent,  or  anything  else  which  is 
purchaser  would  not  be  compelled    merely  nominal, 
to  complete  the  purchase.     Becken-       5  Winne  v.  Reynolds,  6  Paige  (N. 
baugh  V.  Nally,  32  Hun  (N.  Y.),  160.    Y.),  407. 

1  Post  V.  Bernheimer,  31  Hun  (N.        6  Coray  v.    Mathewson,    44    How. 
Y.),   274;  Adams    v.    Valentine,    33   Pr.  (N.  Y.)  88. 
Fed.  Rep.  1.  ■?  Jones  v.  Taylor,  7  Tex.  240. 


OBJKCTIONS    TO    TITLE.  317 

cific  purposes,  whether  such  restriction  is  inserted  in  the  deed 
tendered  or  appears  in  some  of  the  other  conveyances  that 
constitute  the  chain  of  title.  So,  too,  if  he  has  agreed  to  taico 
the  land  subject  to  restriction  he  cannot  be  compelled  to  con- 
summate the  purchase  when  the  so-called  restriction  in  fact  cre- 
ates a  condition  as  distinguished  from  a  limitation  or  covenant. 
It  is  true  that  courts  lean  against  forfeiture,  and  whenever 
possible  will  construe  words  as  creating  a  covenant  or  restric- 
tion instead  of  a  condition,  yet  they  cannot  ignore  the  legal 
signification  of  language;  and  where,  in  sucii  case,  the  restrict- 
ive clause  creates  a  condition,  it  constitutes  a  fatal  defect  in 
the  title.  Contracts  for  the  sale  of  urban  property  are  fre- 
quently made  with  reference  to  the  use  of  the  land  taken  in 
connection  with  adjoining  lands,  wherein  the  vendee  stipulates 
to  accept  a  title  which  shall  be  subject  to  a  servitude  restrict- 
ing the  mode  of  use  of  the  land  to  be  conveyed.  Giving  proper 
effect  to  such  a  contract  the  vendee  would  be  entitled  to  have 
a  clear  title,  free  from  all  incumbrances  except  the  servitude; 
but  he  would  not  be  required  to  accept  a  title  by  which  the 
whole  estate  becomes  liable  to  forfeiture  in  case  the  part  sub- 
jected to  the  restricted  use  is  ever  appropriated  to  a  different 
use.^ 

§13.  Coutiniied  —  Unsatisfied  mortgage.  The  mere  exist- 
ence of  an  unsatisfied  mortgage,  or  the  disclosure  of  this  fact 
by  the  public  records,  does  not  of  itself  constitute  a  valid 
ground  of  objection  to  a  title,  provided  the  mortgage  is  inca- 
pable of  enforcement  against  the  land;  and  where  the  right  of 
entry  or  foreclosure  has  been  cut  off  by  the  lapse  of  time,  such 
mortgage  will  ordinaril}'  be  regarded  as  of  no  more  effect  than 
if  it  had  never  been  executed.  In  some  states  this  is  a  matter 
dependent  upon  statute,  which  fixes  the  period  during  which 
foreclosure  is  allowed;  but  independent  of  any  statutory  en- 
actment courts  will,  in  the  exercise  of  a  lawful  prerogative, 
make  certain  presumj)tions  of  payment.-  The  presumption  of 
payment  founded  on  the  lapse  of  time  and  other  circum- 
stances does  not  always  proceed  on  the  belief  that  the  thing 
presumed  has  actually  taken   place,  but  is  raised  for  the  pur- 

iJeflfriesv.  Jeffries,  117  Mass.  184;    Mich.    733;    Jackson    v.    Wood,    13 
Adams  v.  Valentine,  33  Fed.  Rep.  1.    Johns.  (N.  Y.)  243. 
■-See  Van  Vleet  v.  Blackwood,  39 


318  INCIDENTS    OF    THE    CONTRACT. 

pose  and  from  a  principle  of  quieting-  the  possession.  These 
presumptions  are  founded  in  substantial  justice  and  the  clearest 
policy,  and  prevail  both  in  courts  of  equity  and  law.  The 
presumption  resolves  itself  into  this:  that  a  man  will  nat- 
urally enjoy  what  belongs  to  him  ;  and  is  a  principle  of  decision 
adopted  and  sanctioned  by  a  succession  of  learned  judges  in 
the  courts  of  every  state  in  the  Union. 

Hence  it  is,  where  the  mortgagee  has  never  entered  under 
his  mortgage,  or  taken  steps  to  foreclose  the  same,  and  twenty 
3''ears  or  more  have  been  suffered  to  elapse  since  the  maturity 
of  the  debt,  the  presumption  becomes  very  strong  that  the 
mortgage  has  been  discharged  by  payment  or  otherwise,'  and 
this  presumption  becomes  greatly  intensified  where  successive 
grantees  have  had  the  undisturbed  possession  of  the  premises 
during  this  interval;  and  if  a  party,  with  knowledge  of  his 
rights,  will  sit  still,  and  without  asserting  them  permit  per- 
sons to  act  as  if  they  did  not  exist,  and  to  acquire  interests 
and  consider  themselves  as  owners  of  the  property,  there  is 
no  reason  why  the  presumption  should  not  be  raised.- 

It  has  been  held,  however,  that  this  presumption  may  be  re- 
butted by  satisfactory  proof;  as,  that  interest  has  been  paid 
within  twenty  years;  the  continued  absence  from  the  country 
of  the  obligee;  the  continued  insolvency  of  the  obligor,  or 
other  strong  Circumstances  showing  non-payment  or  cause  for 
forbearance.^  But  the  statute  of  limitations  in  most  cases  will 
come  in  to  aid  the  presumption  of  payment  by  interposing  a 
bar  to  any  right  of  action. 

§  14.  Viipaid  taxes.  A  tax  or  assessment  imposed  by  law- 
ful authority  is  an  incumbrance  upon  title  until  satisfied,  and 
unless  the  vendor  will  cause  them  to  be  discharged  the  vendee 
is  under  no  obligation  to  accept  a  deed  or  complete  the  pur- 
chase.^ 

§  1  5.  Unreleased  dower  rights.  Xo  small  amount  of  the 
litigation  arising  in  connection  with  titles  is  occasioned  by 
the  assertion  of  claims  for  dower  by  women,  who,  at  some 

1  Miller  V.  Smith,  16  Weud.  (N.  Y.)       2  Giles  v.  Baremore,    5  Johns.  Ch. 
463;  Van   Vleet    v.    Blackwood,    39   (N.  Y.)  545. 
Mich.  733.  3  Hale  v.  Pack,  10  W.  Va.  153. 

*  Morange   v.  Morris,  3  Abb.  App, 
320. 


OBJEC'IIONS    TO    TITLE.  319 

stago  in  the  history  of  the  title,  have  sustained  marital  re- 
lations toward  some  of  the  parties  having  or  assuming  to 
have  an  interest  in  the  land.  Such  claims  are  more  frequently 
based  upon  the  fact  of  non-joinder  in  the  deeds  of  the  hus- 
band, yet  instances  occur  where  the  sole  merit  of  the  claim 
lies  in  the  fact  that  the  wife,  while  properl}-  uniting  with  the 
husband  in  execution,  has,  through  the  neglect  of  the  certify- 
ing officer,  failed  to  comply  with  statutory  recpiirements  rela- 
tive to  acknowledgment.  As  the  acknowledgment  was  for- 
merly regarded  as  the  essential  and  effective  act  whereby  a 
wife  estopped  herself  from  afterwards  claiming  dower,  such 
claims  have  often  been  successfully  urged.  It  is  important, 
therefore,  that  the  title  be  carefully  scrutinized  for  defects  of 
this  character;  and  where  a  possible  dower  claim  is  apparent 
an  objection  should  bo  lodged,  and  if  the  objection  is  not 
overcome  by  satisfactory  evidence  that  no  such  claim  can 
arise,  or  if  presented  cannot  be  maintained,  or  unless  the  ob- 
jection is  removed  by  a  release  of  the  dower  right,  the  title 
should  be  rejected  unless  the  purchaser  is  willing  to  assume 
the  risk. 

The  tendency  of  recent  decisions  is  to  discourage  stale 
claims  for  dower,  and  to  place  claims  of  this  character  strictly 
within  the  letter  of  the  law  in  respect  to  the  limitation  of 
actions  and  repose  of  titles.  Hence,  where  the  law  makes  pro- 
vision for  the  quieting  of  title  by  adverse  possession  for  a  lim- 
ited period,  where  such  possession  is  taken  and  maintained 
under  claim  and  color  of  title  made  in  good  faith,  the  remedy 
to  enforce  the  right  of  dower  has  been  held  to  be  embraced 
within  the  provisions  of  such  law;  and  a  widow  must  pursue 
her  remed}'^  within  the  time  therein  prescribed,  or  her  claim 
will  be  effectually  barred  as  against  a  party  in  possession  and 
complying  with  such  law.^ 

§16.  Bowress' death.  "Where  objection  is  made  to  the 
vendor's  title  for  the  reason   that  the   wives  of  any  of  the 

1  So  held  in  Brian  v.  Melton,   125  successive  years  and  during  said  time 

III.  (1888),  under  a  law  providing  that  shall   pay  all   taxes  assessed  on  the 

every  person  in  the  actual  possession  land,  shall  be  held  and  adjuilged  to 

of  lands  under  claim   and  color  of  bo   the  legal   owner  thereof.      And 

title  made  in  good  faith,   and  who  see  Owen  v.  Peacock,  33  111.  33. 
shall  continue  in  possession  for  seven 


320  INCIDENTS    OF   THE   OONTRAOT. 

former  owners  failed  to  relinquish  their  dower,  proof  of  their 
death  prior  to  the  sale  will  obviate  such  objection ;  and  in  like 
manner  proof  of  the  death  of  the  husband  of  a  dowress  more 
than  twenty  years  before  will  be  sufiicient  to  show  that  her 
dower  was  barred,  and  hence  no  incumbrance.^ 

§  17.  Title  subject  to  defeasance.  Unless  he  stipulates  so 
to  do,  a  purchaser  will  not  be  compelled  to  accept  a  title  sub- 
ject to  be  defeated.  Thus,  he  is  under  no  obligation  to  take  a 
title  clouded  by  a  right  of  reverter  in  the  heirs  of  the  original 
grantor  by  reason  of  a  diversion  from  the  uses  limited  in  his 
convej'ance.^ 

§  18.  Trusts  and  other  eqnities.  ISTot  only  should  the  title 
disclosed  be  a  legal  title,  but  it  should  also  be  unhampered  by 
trusts  or  other  equities;  and  where  the  devolution  shows  that 
it  originated  in  trust,  no  matter  how  long  it  may  have  con- 
tinued unassailed,  it  cannot  be  said  to  be  marketable,  and  an 
objection  may  properly  be  lodged  against  it.  The  reason  for 
this  is  that,  as  a  general  rule,  length  of  time  is  no  bar  to  a 
trust  clearly  shown  to  have  once  existed;^  and  while  this  rule 
is  not  without  its  appropriate  qualifications,  yet  as  long  as  the 
relation  of  trustee  and  cestui  que  trust  is  acknowledged,  the 
lapse  of  time  can  constitute  no  bar  to  the  granting  of  proper 
relief  for  the  parties  beneficially  interested.  If  there  has  been 
an  open  denial  or  repudiation  of  the  trust,  and  this  can  be  shown 
to  have  been  brought  home  to  the  knowledge  of  the  parties 
beneficially  interested,  so  as  to  compel  them  to  act  as  upon  an 
adverse  title,  or  when  time  and  long  acquiescence  have  ob- 
scured the  nature  and  character  of  the  trust,  or  where  the  acts 
of  the  parties  or  other  circumstances  give  rise  to  presumptions 
unfavorable  to  its  continuance,  a  court  of  equity  will  frequently 
refuse  to  grant  relief  upon  the  ground  of  lapse  of  time  and  its 
inability  to  do  complete  justice.  So,  too,  as  length  of  time 
necessarily  obscures  all  human  evidence  and  deprives  par- 
ties of  the  means  of  ascertainincr  the  nature  of  the  original 
transaction,    it   operates,   bj'   way   of   presumption,    in    favor 

1  Lyman  v.  Gedney,  114  111.  388.  ing  the  limitation.     Universalist  So- 

-  Nor  is  the  case  affected   by  the  ciety  v.  Dugan,  G5  Md.  460. 

fact  that  the  legislature  attempted  to  3  Gratz  v.  Prevost,  G  Wheat.  (U.  S.) 

authorize  an  absolute  disposition  by  481. 

the  original  grantee,  notwithstand- 


OBJECTIONS    TO    TITLE.  321 

of  the  legal  title  and  against  imputations  that  may  be  put 
upon  it,' 

It  is  a  well-established  rule,  however,  that  every  purchaser 
of  trust  property  with  notice  of  the  trust  takes  it  charged 
Avith  and  subject  to  that  trust.-  The  vested  interests  of  the 
beneficiaries  cannot  be  impaired  or  destroyed  by  the  voluntary 
act  of  the  trustee,'  and  the  trust  will  follow  the  land  in  the 
hands  of  any  person  to  whom  he  may  convey  it  with  knowl- 
edge.^ 

§19.  Equitable  estates  —  Legal  title  oiitstandincj  in 
trustees.  An  equitable  estate  is  just  as  projierly  the  subject 
of  barter  and  sale  as  a  legal  title  vested  in  possession,  but  the 
law  presumes  that  the  contract  refers  to  a  legal  title  in  all 
cases  where  the  circumstances  do  not  rebut  such  presumption; 
and  a  purchaser  who  has  contracted  for  a  marketable  title 
may  justly  object  to  an  equity,  however  strong.  Kor  does  the 
fact  that  the  vendor  possesses  the  entire  beneficial  use  of  the 
property,  or  that  the  outstanding  legal  title  is  vested  in  trustees 
who  may  be  compelled  to  conve}'  at  any  time,  alter  the  case. 
Until  such  outstanding  legal  title  is  extinguished  the  sale  can- 
not be  enforced  against  the  vendee.-^ 

§  20.  Violation  of  fiduciary  trusts.  A  title  which  discloses 
the  fact  that  some  of  the  ])rior  vendors  have  violated  some 
fiduciary  trust,  even  though  such  fact  may  be  only  inferential, 
is  for  that  reason  defective  and  may  properly  be  objected  to. 
As  where  it  is  shown  that  a  trustee  has  purchased  at  his  own 
sale,  either  directly  or  indirectly,  a  purchaser  from  him  would 
not  be  protected  as  one  buying  in  good  faith  and  without 
knowledge  of  the  breach  of  trust;  and  the  title  being  voidable 

1  The  lapse  of  forty  years  and  the  •  Carpenter  v.  McBride,  3  Fla.  292 ; 

death    of    all    the    original    parties  Kent  v.  Plumb,  57  Ga.  207;  Gale  v. 

deemed  sufficient  to  presume  the  dis-  Mensing,  20  Mo.  461 :  Talbott  v.  Ball, 

charge  and  extinguishment  of  a  trust,  5  B.  Mon.  (K)-.)320;  Ryan  v.  Doyle, 

proved  to  have  once  existed  by  strong  31    Iowa.   53:  Ham   v.   Ham,    58  N. 

circumstances;    by   analogy   to    the  H.  70. 

rule  of  law,  which  after  a  lapse  of  ^  siiepard  v.  McEvers,  4  Johns.  Ch. 

time  presumes  the  payment  of  a  debt,  (N.  Y.)  136. 

surrender  of  a  deed  and  extinguish-  *  Gray  v.  Ulrich,  8  Kan.  112;  Coble 

ment  of  a  trust  when  circumstances  v.  Nonemaker,  78  Pa.  St.  501. 

require  it.  Prevostv.  Gratz,  6  Wheat.  ^Murry  v.  Ellis,  112  Pa.  St.  485. 
(U.  S.)  481. 
21 


322  INCIDE:^To    OF   THE   CONTKACT. 

by  those  whom  the  trustee  was  bound  to  protect,  should  be 
rejected  by  the  purcliaser.' 

It  is  true  that  a  title  derived  through  the  violation  of  a  trust 
may  in  time  ripen  into  an  indefeasible  estate,  and  tiiat  contin- 
uous adverse  possession  may  be  sufficient  to  preclude  those 
who  otherwise  might  have  assorted  higher  equities;  but  while 
courts  will  ordmarily  refuse  to  lend  their  aid  to  assist  a  de- 
frauded party  who  fails  to  assert  his  rights  within  a  reason- 
able time,  it  is  nevertheless  nearly  impossible  in  a  case  of  this 
kind  to  say  what  is  a  reasonable  time,  or  with  accuracy  to  de- 
termine when  the  bar  of  the  statute  has  fully  intervened.  A 
very  great  length  of  time  might,  perhaps,  be  conclusive;  yet 
while  twenty  years  is  usually  named  as  the  shortest  period 
which  a  court  of  equity  would  be  bound  to  consider  as  an  ab- 
solute bar,  there  are  case's  where  sales  have  been  set  aside  even 
after  that  time.'  In  all  these  cases  diverse  and  varied  circum- 
stances operated  to  affect  the  judgment  of  the  court;  but  they 
all  show  that  no  particular  time  can  be  regarded  as  necessarily 
conclusive,  and  that  a  purchaser  receiving  a  deed  in  ignorance 
of  the  occasion  or  circumstances  of  the  delay  would  run  the 
risk  of  an  adverse  decision  or  hold  at  the  best  only  a  doubtful 
title.  Infancy,  ignorance,  concealment  or  misrepresentation 
might  come  to  explain  and  excuse  the  delay  and  prevent  it 
from  amounting  to  acquiescence. 

§21.  Party-walls.  The  practice  of  economizing  space  in 
populous  cities  by  the  erection  of  party-walls  is  of  very  ancient 

1  People  V.  Board  of  Stock-brokers,  veyances  were  but  one  transaction, 
92  N.  Y.  98.  In  this  case  the  exam-  tlie  executor  acting  in  the  double  ca- 
ination  of  the  title  showed  two  deeds,  pacity  of  seller  and  purchaser,  and 
which  constituted  links  in  the  chain,  therefore  the  title  was  voidable  at 
from  an  executor  to  a  third  person,  the  election  of  the  beneficiaries 
and  from  tlie  latter  back  to  the  exec-  named  in  the  will;  also,  that  the 
utor,  under  whom,  as  an  individual,  lapse  of  time,  it  being  less  than 
the  vendor  claimed.  The  deeds  were  twenty  years,  was  not  conclusive 
dated  within  four  days  of  each  other,  upon  them.  And  see  Wormley  v. 
and  were  recorded  upon  the  same  Wormley,  8  Wheat.  (U.  S.)  449. 
day.  No  accounting  or  settlement  2  in  Hatch  v.  Hatch,  9  Ves.  (Eng. 
of  the  executor  had  been  had,  and  Ch.)  292,  a  sale  was  set  aside  after 
no  ratification  of  the  transfer  by  twenty  years.  In  Dobson  v.  Racey, 
those  interested  under  the  will  was  3  Sandf.  (N.  Y.)  Ch.  66,  after  twenty- 
proved.  Held,  that  the  title  was  de-  seven  years, 
fective,  as  it  appeared  that  the  con- 


OBJECTIONS   TO   TITLE.  323 

origin  and  universal  observance.  Their  use  has  the  effect  to 
create  cross-easements  on  the  lands  of  the  respective  adjoining 
proprietors  which  become  appurtenant  to  their  several  estates 
and  pass  to  their  respective  assi fences  by  any  conveyance  that 
may  be  effectual  to  transfer  the  land  itself.'  Purchasers  from 
such  parties  take  with  constructive,  if  not  actual,  notice  of  the 
])art3'-wall  agreement,  and  are  presumed  to  have  assumed  the 
burdens  as  well  as  the  benefits  which  are  incident  to  it.- 

Yet  while  it  is  true  that  the  erection  of  a  ])arty-\vall  creates 
a  community  of  interest  between  the  neighboring  proprietors, 
there  is  no  just  sense  in  which  the  reciprocal  easement  for  its 
preservation  can  be  deemed  a  legal  incumbrance  upon  the 
property.-^  The  benefit  thus  secured  to  each  owner  is  not  con- 
verted into  a  burden  by  the  mere  fact  that  it  is  mutual  and  not 
exclusive.^  It  would  seem,  therefore,  that  where  land  is  sold 
and  at  the  time  is  improved  by  buildings,  the  buildings  form- 
ing the  inducement  to  the  sale,  the  fact  that  the  exterior  walls 
are  party-walls  will  not  be  permitted  to  be  urged  as  an  objec- 
tion to  the  consummation  of  the  contract  by  the  vendee;  nor 
will  such  party-walls  be  considered  as  such  an  easement  or 
incumbrance  upon  the  premises  as  will  relieve  a  vendee  from 
his  contract  to  purchase  them,  although  he  was  ignorant  that 
the  walls  were  part3'-W'alls  when  he  made  the  contract.  If 
there  has  been  no  positive  representation  of  their  condition  or 
character  the  failure  of  the  vendee  to  inform  himself  on  the 
subject  indicates  his  indifference  as  to  the  particular  character 
of  the  walls,  and  shows  that  he  was  content  to  buy  without 
being  at  the  trouble  of  examination  or  inquiry.  This  omission, 
may  be  evidence  of  his  own  indiscretion  and  want  of  caution 
but  cannot  be  imputed  as  a  wrong  to  the  vendor  when  he  has 
neither  done  nor  said  anything  to  mislead  him.  In  such  a  case 
there  w^ould  be  no  failure  of  any  substantial  inducement  to  the 
contract.* 

illart    V.    Lyon,    90    N.    Y.    663;  sheimer,  50  N.  Y.  646;  Thompson  v. 

Brooks    V.    Curtis,    50    N.    Y.    639 ;  Ciiriis,  28  Iowa,  229. 

Thompson    v.  Curtis,  28  Iowa,    229;  -Mohrv.  Parmelee,  43  N.  Y.  Sup. 

Ingalls  V.  Phimondon,  75  III.  123;  Ct,  328:  Hendricks  v.  Stark,  37  N. 
Standish  v.  Lawrence,  111  Mass.  111."  Y.  111. 

2Rochev.  Ulhnan,  104  III.  1;  Main  <  Tartridge    v.    Gilbert,    15    N.    Y. 

V.  Cumston,  9S  Mass.  317;  Kiiulge  v.  GOl. 

Baker,  57  N.  Y.  209;  Rogers  v.  Sin-  »  Hemhicks  v.  Stark,  37  N.  Y.  106. 


324  INCIDENTS   OF   THE   CONTRACT. 

§  22.  Unopened  streets.  A  vendee  is  entitled  to  all  of  the 
land  bargained  for,  and  will  not  be  forced  to  accept  a  lot 
whose  area  is  diminished  by  a  street  laid  out  on  a  city  plan  as 
running  through  the  property,  the  existence  of  which  was  un- 
known to  him  when  the  contract  was  made.'  This  is  in  ac- 
cordance with  the  principle  that  a  vendee,  without  knowledge 
of  any  defect  in  title  when  the  agreement  was  executed,  is  not 
compelled  to  accept  a  doubtful  title  or  one  that  will  probably 
require  a  lawsuit  to  establish  its  validity;  and  where  the  agree- 
ment calls  for  a  marketable  title  or  a  title  free  from  incum- 
brances, an  objection  ma}'^  properly  be  made  for  this  reason, 
and  the  existence  of  the  street  will  constitute  an  incumbrance 
or  restriction  upon  a  portion  of  the  lot  sufficient  to  bar  the 
vendor  from  a  decree  in  his  favor.- 

§  23.  Clouds  upon  title.  As  has  been  stated,  unless  the 
vendee  has  otherwise  agreed  it  is  his  undoubted  right  to  de- 
mand a  "clear"  title;  and  if  obscurations  appear  thereon  he 
may  reject  it  for  that  reason.  A  "cloud"  consists  of  a  deed, 
lien,  charge  or  incumbrance  of  Siuy  kind  which  casts  a  shadow 
upon  the  title,  regular  and  apparently  valid  upon  its  face,  but 
in  fact  irregular  and  void  from  circumstances  which  have  to 
be  proved  by  extrinsic  evidence.*  If  the  invalidity  plainly  ap- 
pears on  the  face  of  the  instrument,*  or,  although  not  appar- 
ent on  the  writing,  if  it  is  shown  by  any  of  the  preliminaries 
which  attend  it,  or  in  any  of  the  links  which  connect  it  with 
the  title,^  so  that  no  lapse  of  time  nor  change  of  circumstances 
can  weaken  the  means  of  defense,  such  an  instrument  does  not, 
in  a  just  sense,  even  cast  a  cloud  upon  the  title  or  diminish  the 
security  of  the  owner  of  the  land;^  for  the  rule  is  well  settled 

1  Peck  V.  Jones,  70  Pa.  St.  83;  Kyle  wold  v.  Fuller,  33  Mich.  268.  As  where 
V.  Kavanagh,  103  Mass,  356.  title  is  deduced  through  a  judicial 

2  Appeal  Sav.  Bank  of  Pittsburgh,  sale,  where  the  proceedings  which 
3  Atl.  Rep.  821.  were  the  basis  of  such  sale,  and  upon 

3  Murphy  v.  Mayor,  etc.  of  Wil-  which  the  validity  of  the  adverse  title 
mington,  10  Reporter,  765;  Crooke  v.  depends,  are  shown  to  be  void  for  ju- 
Andrews,  40  N.  Y.  547 ;  Sanxay  v.  risdictional  defects.  Florence  v.  Pas- 
Hunger,  42  Ind.  44:  Davidson  v.  See-  dial,  50  Ala.  28;  Hatch  v.  City  of 
gar,  15  Fla.  671.  Buffalo,  38  N.  Y.  276. 

*R.  R.  Co.  v.  Schuyler,  17  N.  Y.  6R.  R.  Co.  v.  Schuyler,  17  N.  Y. 
599.  599 ;  Bogert  v.  City  of  Elizabeth,  27 

5 Fonda  v.  Sa^o,  4S  N.  Y.  173;  Giis-   N.  J.  Eq.  568. 


OBJECTIONS   TO   TITLE.  325 

that  such  an  instrument  can  work  no  mischief,  and  that  no  oc- 
casion arises  for  equitable  interference  for  its  removal  or  can- 
cellation.• 

On  the  other  hand,  an^'thing  which,  if  asserted  by  action 
and  put  in  evidence,  would  compel  the  production  of  defend- 
ant's title  is  a  cloud.^  Anything  which  may  injuriously  affect 
title,  or  may  be  vexatiously  used  against  the  owner  of  such 
title,  properly  comes  under  the  same  definition;'  and  this  will 
apply  to  all  matters  where  the  invalidity  can  only  be  made  to 
appear  by  extrinsic  evidence.*  The  matters  which  go  to  con- 
stitute a  cloud  are  such  as  are  usually  enumerated  under  the 
head  of  defects  of  title,  and  may  consist  of  agreements  for 
conveyance,  void  because  of  extrinsic  facts;''  a  certiiicate  of 
sale  under  a  void  levy;^  a  sale  made  under  a  mortgage  with 
power  after  the  payment  of  the  debt; '  a  deed  made  without 
authority;®  a  mortgage  paid  but  not  released,^  or  one  given 
without  consideration. 

§  24.  Purchase  with  notice  of  defects.  It  has  been  held 
that,  where  a  purchaser  knows  when  he  makes  his  contract 
that  there  is  a  defect  in  the  title,  and  that  it  will  take  consid- 
erable time  to  remove  it,  or  acquires  this  knowledge  after  his 
purchase  and  acquiesces  in  the  delay,  or  proceeds,  with  knowl- 
edge of  the  defect,  in  the  execution  of  the  contract,  he  cannot 
afterwards  complain.'"     Frequently  the  act  of  taking  posses- 

1  Fonda  v.  Sage,  48  N.  Y.  173;  eShannou  v.  Erwin,  11  Heisk. 
Cohen  V.  Sharp,  44  Cal.  29.  (Tenn.)  337 ;   Stout   v.  Cook,  37   III. 

2  Lick  V.  Ray,  43  Cal.  83.  283. 

»Duirs  Appeal,    113  Pa.    St.   510;  ^  Redmond  v.  Packenham,   66  III. 

Fonda  v.  Sage,  48  N.  Y.  173 ;  Martin  434. 

V.  Graves,  5  Allen  (Mass.),  661.  « Carter  v.  Taylor,  3  Head  (Tenn.), 

*  Douglass  V.  Nuzam,  16  Kan.  515;  30. 

Sanxay  v.  Hunger,  42  Ind.  44 ;  Al-  *  Matheson  v.   Thompson,  20   Fla. 

den  V.   Trubee,  44  Conn.  455;   Dan-  790. 

iel  V.  Stewart,  55  Ala.  278;  Crooke  v.  '^Jn  such  case  specific  performance 

Andrews,  40  N.  Y.  549.  will  be  decreed,  with  strict  regard  to 

5  As  the  record  of  an  agreement  the  terms  of  the  contract  and  the  in- 

for  sale  upon  condition,  with  no  no-  tervening  equities.      Where   time  is 

tification  of  its  acceptance  or  compli-  not  of  the  essence  of  the  contract  the 

ance  with  same.     Sea  v.  Morehouse,  veudor  will  be  allowed  a  reasonable 

79   111.    216.     Or  agreement   not  ac-  time  to  obtain  a  perfect  title.     Rader 

cepted   in   time  but  afterwards    re-  v.  Neal,  13  W.  Va.  373. 
corded.      Larmon  v.  Jordan,  56  III. 
204. 


82G  INCIDENTS   OF   TUE   CONTRACT. 

sion  with  knowledge  of  defects  will  be  held  to  bo  a  waiver  of 
the  right  to  object  for  that  reason.^ 

§  25.  Tariance  and  discrepancy.  It  will  not  infrequently 
happen  that  an  examination  of  the  title  discloses  an  apparent 
defect  of  title  in  the  nature  of  a  flaw,  but  which  is  not  so  in 
fact,  the  apparent  flaw  having  been  occasioned  by  an  imper- 
fect designation  or  misnomer.  Thus,  where  a  deed  to  William 
Harmon  is  followed  by  a  conveyance  from  William  Herman, 
there  is  an  apparent  break  in  the  chain  unless  other  evidence 
is  produced  to  show  the  identity  of  person.  There  can  be  no 
doubt  that  a  title  disclosing  such  a  state  of  facts  is  objection- 
able for  that  reason;  and  notwithstanding  the  names  may 
stand  for  and  represent  but  one  person,  the  variance  is  of  such 
a  character  as  to  raise  grave  doubt  while  the  defect  would 
clearly  be  a  violation  of  the  terms  of  an  agreement  to  furnish 
a  clear  title  deducible  of  record. 

In  construing  deeds  of  this  character,  however  —  that  is, 
where  a  party  takes  under  a  misnomer,  but  conveys  by  his 
proper  name  —  courts  are  ever  inclined  to  grant  the  widest 
leniency ;  for  in  the  great  influx  of  foreign-speaking  population 
which  the  United  States  is  constantly  receiving  mistakes  must 
occur  in  adapting  to  the  English  forms  of  pronunciation  for- 
eign names  and  the  spelling  of  the  same ;  hence  it  has  been  held 
that  a  deed  to  Mitchell  Allen  followed  by  a  deed  from  Michael 
Allaine  is  not  a  fatal  variance,  and  the  name  will  be  considered 
the  same.^  So,  also,  the  negligence  of  the  recording  officer 
will  often  produce  a  disparity  of  this  kind;  as  where  the  rec- 
ords showed  a  deed  to  Electa  Wilds,  and  a  subsequent  deed 
of  the  same  property  from  Electa  Wilder,  Wilds  being,  how- 
ever, the  true  name.^  In  each  of  the  foregoing  cases  as  well 
as  in  cases  similar  thereto,  the  defect  of  title  as  shown  by  the 
records  would  undoubtedly  be  sufficient  to  warrant  an  intend- 
ing purchaser  in  rejecting  the  title.  The  dissimilarity  in  the 
names  would  prevent  the  operation  of  the  rule  respecting  idem 
sonans,  and  the  legal  effect  would  be  that  of  an  entire  stranger 
to  the  title  conveying  the  same  and  passing  it  on  through  the 
chain  to  the  last  vendee.     But  without  disputing  the  rule  that 

1  Jones  V.  Taylor,  7  Tex.  240.  3  Hellreigel  v.   Manning,  97  N.  Y. 

2Chiniquy  v.  Catholic  Bishop,  41    56. 
111.  148. 


OBJECTIONS   TO   TITLE.  S27 

;i  marketable  title  must  be  free  from  reasonable  doul)t.  it  has 
frequently  been  held  tiiat  (U^fects  in  the  record  or  ])aj)er  title 
may  be  cured  or  removed  by  parol  evidence,'  A  ])urchaser 
cannot  justify  his  refusal  to  perform  by  a  mere  captious  ob- 
jection, but  must  show  that  there  is  f;:round  for  a  reasonable 
doubt  as  to  the  title  offered,  such  as  affects  its  value  and  would 
interfere  with  its  sale  to  a  reasonable  purchaser,  and  thus  ren- 
der the  land  unmarketable.  A  defect  in  the  record  title,  if 
amounting  to  a  positive  flaw,  would  under  most  circumstances 
furnish  a  reasonable  basis  for  objection;  but,  on  the  other 
hand,  if  competent  evidence  is  furnished  showing  conclusively 
a  mistake  in  the  record  or  the  absolute  identity  .of  person  with 
the  different  names,  together  with  such  other  matters  as  would 
leave  the  case  free  from  any  reasonable  doubt  that  the  vendor 
possessed  and  could  convey  a  good  title,  then,  notwithstanding 
the  apparent  defect  in  the  chain  of  title  as  shown  b}'  the  rec- 
ords, a  purchaser  could  not  justly  refuse  to  perform  his  agree- 
ment.- 

§  26.  Stipulation  for  failure  of  title.  It  is  now  customary 
to  make  but  a  small  cash  payment  at  the  time  of  closing  a 
contract,  where  provision  is  made  for  the  furnishing  of  an  ab- 
stract of  title;  and  this  payment,  while  it  applies  upon  the 
purchase,  is  generally  regarded  more  in  the  light  of  an  earn- 
est—  a  guaranty  of  good  faith  —  to  be  retained  in  case  the 
purchaser  makes  default,  or  to  be  returned  if  the  title  after 
examination  should  prove  unmarketable.  The  customary  stip- 
ulation is  that,  "should  the  title  to  the  property  not  prove 
good,  then  the  payment  to  be  refunded."  The  object  of  such 
a  clause  is  to  avoid  disputes  about  the  title,  and  while  it  is 
being  adjusted  the  purchaser  keeps  his  money,  and  the  vendor 
will  be  enabled  to  find  another  purchaser  if  the  vendee  is  dis- 
satisfied with  the  title.  But  the  vendee,  in  such  case,  must 
make  his  election.  He  cannot  claim  the  benefit  of  the  pur- 
chase and  refuse  to  make  his  payments.^ 

§  27.  Agreement  to  furnish  abstract,  when  an  nndertak- 
ing  in  respect  to  title.  A  vendor's  obligation  in  respect  to 
title  is  to  be  determined   usually  from   the  character  of  the 

1  Miller  v.  Macomb,  26  Wend.   (N.        -  Hellreigel  v.  Manning,  97  N.   Y. 
Y.)  229;  Murray  v.  Uarway,  56  N.  Y.    56. 
337.  3Brizzolara  v.  Mosher,  71  111.  41. 


328  INCIDENTS   OF   THE   OONTKACT. 

conveyance  to  be  made  rather  than  from  any  agreement  in 
respect  to  furnishing  an  abstract.  The  ofTicc  of  the  latter  is 
l)urely  advisory;  it  is  a  compendium  of  information  only,  and 
it  is  ])resumed  that  the  vendee  upon  its  perusal  is  to  exercise 
his  own  judgment  with  respect  to  any  disclosures  it  may 
make.  The  agreement  of  the  vendor  may  be  to  furnish  a 
"satisfactory  abstract  of  title,"  but  this  in  itself  cannot  be 
said  to  imply  any  undertaking  on  the  part  of  the  vendor  that 
the  title  disclosed  shall  be  marketable  or  free  from  doubt.  It 
is  the  abstract,  not  the  title,  that  is  to  be  satisfactory;  and  this 
has  reference  to  its  form,  make-up,  etc.,  and  to  the  responsi- 
bility of  the  examiner  who  may  have  compiled  it  and  certified 
to  its  correctness. 

Where  the  contract  specifically  provides  for  an  abstract 
showing  a  particular  title,  this  may  reasonably  be  construed 
as  an  undertaking  for  title,  and  as  an  agreement  to  produce 
evidence  of  such  title,  in  default  of  which  objections  would 
lie;  but  even  in  such  a  case  the  recitals  of  the  agreement  con- 
cerning the  estate  to  be  conveyed  and  the  deed  to  be  given 
would  probably  control  in  the  construction  of  the  contract. 

A  clause  which  provides  that  the  vendor  is  to  furnish  a  sat- 
isfactory abstract  of  title  and  give  a  quitclaim  deed,  or  one 
with  limited  covenants  against  the  vendor's  own  acts,  upon 
tender  of  which  the  cash  payments  are  to  be  made,  implies  no 
undertaking  as  to  the  character  of  title  to  be  conveyed,  but, 
on  the  contrary,  shows  that  the  vendor  assumes  no  responsi- 
bility as  to  the  title  any  further  than  it  may  have  been  af- 
fected by  his  own  acts.^  In  such  a  case,  if  the  title  is  free 
from  reasonable  objection,  the  vendee  would  be  bound  to  ac- 
cept it;  if  not,  he  might  either  accept  or  reject  it,  as  he  should 
elect. 

§  28.  Immaterial  defects.  It  has  been  held  that  imma- 
terial defects  and  merely  technical  objections  will  not  defeat 
a  sale,  and  that  a  court  will  not  permit  a  purchaser  to  avoid 
his  contract  without  seeing  that  the  object  of  the  purchase  is 
defeated  and  that  it  would  be  injurious  to  him  to  enforce  the 
contract."^  This  is  particularly  true  where  the  purchaser  con- 
tracts with  full  knowledge  of  the  situation  of  the  premises  or 

1  Fitch  V.  Willard,  73  111.  93.  2Riggg  v.  Pursell,  66  N.  Y.  193. 


OBJECTIONS    TO    TI'lLE.  329 

tlie  condition  of  the  title;'  and  if  he  gets  substantially  what  he 
bargained  for,  he  must  complete  the  purchase  and  take  his  deed. 
This  is  a  matter,  however,  which  rests  in  the  discretion  of  the 
court,  who  should  weigh  the  object  and  inducement  of  the  pur- 
chaser, and,  looking  to  the  merits  and  substantial  justice  of  each 
particular  case,  if  the  sale  be  fair,  relieve  or  not  from  the  pur- 
chase, according  as  the  character  of  the  transaction  and  circum- 
stances may  aj)pear  to  require.-' 

As  the  law  does  not  regard  trifles,  a  reservation  of  a  pepper- 
coi-n  or  any  other  rent  which  is  merely  nominal  is  not  a  valid 
objection  to  the  title  of  the  vendor,  who  holds  subject  to  the 
payment  of  such  nominal  rent;  and  so,  in  like  manner,  it  has 
been  held  that  it  is  no  valid  objection  to  the  title  of  the  vendor 
that  the  conveyance  under  which  he  holds  contains  a  res- 
ervation of  mines  and  minerals  and  water  privileges,  if  from 
the  evidence  there  is  no  reason  to  suppose  there  are  any  min- 
erals or  water  privileges  on  the  premises.^ 

§  29.  Waiver  of  objections  to  title.  It  may  happen  that 
the  purchaser  is  satisfied  with  the  title  without  investigation,  or 
that  he  prefers  to  take  the  same  and  rely  upon  the  covenants 
of  his  deed  for  protection  against  adverse  claims;  and  if  for 
any  reason  he  sees  fit  to  forego  examination  and  waive  all 
objections  to  title,  and  this  intention  is  unequivocally  expressed, 
there  can  be  no  doubt  that  he  will  be  held  to  the  terms  of  his 
agreement,  even  though  there  is  provision  for  an  abstract  of 
title,  and  by  the  abstract  serious  defects  and  imperfections  are 
disclosed. 

The  mere  fact  of  taking  possession  and  exercising  acts  of 
ownership  over  the  land  will  not  preclude  the  purchaser  from 
his  right  to  investigate  the  title,  unless  it  clearh'  appears  that 
he  intended  to  waive  and  has  actually  waived  such  right. 
The  waiver  is  always  a  question  of  intention,  and  one  of  fact 
from  all  the  circumstances,  and  not  an  arbitrary  presumption 
of  law  from  the  mere  fact  of  taking  possession;  and  where  by 
the  terms  of  the  contract  the  vendor  was  to  give  immediate 

•Craddock    v.    Sliirley,    3    A.    K.  King  v.  Bardeau,  6  John.  Cb.  (N.  Y.) 

Marsh.  (Ky.)  288 ;  Winne  v.  Reynolds,  38. 

r.   Paige  (N.  Y.),  407;  Toun.kins   v.  » Winne  v.  Reynolds,  G  Paige  (N.Y.), 

Hyatt,  28  N.  Y.  347.  407. 

2Riggs  V,   Pursell,  66   N.   Y.   193; 


330  INCIDENTS    OF   THE    CONTRACT. 

possession,  and  also  to  furnish  an  abstract  of  the  title,  but 
with  no  time  fixed  for  the  latter,  this  will  have  an  important 
bearing  upon  the  question  of  waiver  of  objections  to  tiie  title 
b}'-  the  vendee  in  taking  possession,  as  possession  in  such  case 
is  consistent  with  the  contract.^  It  is  better,  however,  that  the 
purchaser  should  not  take  possession  until  every  objection  to 
the  title  has  been  removed,  lest  the  act  should  be  deemed  an 
acceptance  of  the  title ;  and  the  rule  deduced  from  the  English 
cases  is  that,  if  the  purchaser  take  possession  of  and  enjoy  the 
property,  it  is  the  duty  of  the  court  to  make  every  reasonable 
presumption  in  favor  of  the  contract.-  Still,  the  current  of 
Enirlish  decisions  coincides  wnth  the  views  first  stated,  and  an- 
nounces  the  doctrine  that  a  purchaser  may  with  the  concur- 
rence of  the  vendor  safely  take  possession  of  the  estate  at  the 
time  the  contract  is  entered  into,  as  he  cannot  be  held  to  have 
waived  objections  of  which  he  was  not  aware;  and  if  the  pur- 
chase cannot  be  completed  on  account  of  objections  to  the 
title,  he  will  not  be  bound  to  pay  rent  for  the  property,  even 
if  the  occupation  of  it  has  been  beneficial  to  him.^ 

Yet,  while  the  mere  fact  of  taking  possession  does  not  in 
itself  amount  to  a  waiver  of  objections  to  title,  and  while 
other  circumstances  are  usually  required  to  raise  the  presump- 
tion of  waiver,  if  the  purchaser  does  enter  into  possession  under 
the  contract  with  knowledge  of  a  slight  defect  in  the  vendor's 
title  or  a  slight  incumbrance  upon  it,  he  will  be  held  in  many 
cases  to  have  waived  his  objections,  and  will  be  deemed  to  have 
accepted  the  title  as  he  knew  it  existed,  intending  to  rely,  in 
case  of  failure,  upon  the  covenants  of  warrantv  for  redress.* 

§  30.  Effect  of  delay  in  making  objection.  Where  the  pur- 
chase of  land  is  made  upon  condition  that  the  title  is  found  good, 
the  purchaser,  in  the  absence  of  any  stipulation  as  to  time,  is 
only  entitled  to  a  reasonable  period  in  which  to  determine 
whether  he  will  take  the  title  the  vendor  has  or  reject  it.  He 
cannot  keep  the  contract  open  indefinitely,  so  as  to  avail  of  a 
rise  in  the  value  of  the  property,  or  relieve  himself  in  case  of 

iPage  V.  Greeley,  75  111.  400.  "See  Jones  v.  Taylor,  7  Tex.  240; 

2  And    see  Richmond  v.    Gray,    3  Winne  v.  Reynolds,  6  Paige  (N.  Y.), 

Allen  (Mass.),  25.  407;  Riggs  v.  Pursell,  66  N.  Y.  193; 

■J  See  1   Sug.  Vend.    12,  and  cases  Craddock  v.  Shirley,  3  A.  K.  Marsh, 

cited.  (Ky.)  288. 


OBJECTIONS   TO   TITLK.  331 

a  depreciation.^  Hence,  any  unreasonable  delay  by  the  ])ur- 
chascr  in  the  exercise  of  his  oj)tion  to  avoid  the  contract  for 
objections  to  the  title  will  defeat  his  right  to  a  specific  per- 
formance."- 

If  a  day  has  been  fixed  for  the  conveyance  of  the  property, 
the  vendee,  if  he  wishes  to  object  to  the  title, 'must  give  notice 
of  his  objections  a  reasonable  time  previous  thereto,  to  enable 
the  vendor  to  remove  the  objections  if  possible,  and  to  make 
conveyance  at  the  time  specified ;  and  in  case  of  his  neglect  so 
to  do,  a  court  of  equity  may  consider  a  strict  performance  of 
the  contract  by  a  conveyance  on  the  specified  day  as  waived. 
And  where  the  vendor  has  not  been  guilty  of  gross  negligence 
in  perfecting  his  title,  equity  may  decree  a  specific  perform- 
ance upon  a  bill  filed  by  him,  although  the  title  was  not  per- 
fected on  the  specified  day,  unless  the  time  of  perfecting  the 
same  is,  by  the  terms  of  the  agreement,  made  an  essential  part 
of  the  contract.^ 

§31.  Detects  in  the  subject-matter.  Aside  from  objec- 
tions to  the  title  the  purchaser  may  sometimes  found  objec- 
tions upon  matters  connected  with  or  incident  to  the  land 
itself.  Ordinaril}',  he  will  be  presumed  to  know  the  condi- 
tion of  the  property  and  to  purchase  with  notice  of  its  charac- 
ter, condition  and  surroundings;  and  unless  some  imposition 
has  been  practiced  upon  him  he  will  not  be  heard  to  object  on 
account  of  the  same.  Xor  will  he  be  permitted  to  refuse  to 
perform  because  of  trifles  for  which  compensation  can  be 
readily  made.*  Where  the  purchaser  gets  substantially  all 
for  which  he  contracted,  a  slight  deficiency  will  form  no  ground 
for  a  refusal  to  proceed,  where  the  deficiency  is  occasioned  b\'^ 

1  Hoyt  V.  Tuxbury,  70  111.  331.  that  he  was  guilty  of  laches,  and  not 

2  Unusual    delay,   unexplained   by  entitled    to  conveyance.     Lanitz   v. 
equitable    circumstances,    will  ordi-  King,  6  S.  \V.  Rep.  (Mo.)  263. 
narily   bar    anj'  claim   for  relief  in  3  More  v.  Smedburgh,  8  Paige  (X. 
equity.     Walker  v.  Douglass,  70  111.  Y.),  GOO. 

445;  Iglehart  v.  Vail,  73  111.  G3.  ^As,  for  instance,  that  a  water- 
Where  the  vendee  was  to  satisfy  wheel  was  slightly  out  of  repair,  or 
himself  as  to  the  title  and  make  pay-  that  certain  articles  of  machinery 
ment  within  two  weeks,  but  failed  were  claimed  by  a  tenant,  there  being 
to  do  so,  and  more  than  a  year  after-  no  bad  faith  on  the  vendor's  part, 
wards  tendered  the  purchase  money  Towner  v.  Tickner,  112  111.  217.  But 
and  demanded  the  conveyance,  held,  see  Smyth  v.  Sturges,  lOS  N.  Y.  495. 


332  INCIDENTS    OF   THE    CONTRACT. 

no  bad  faith  on  the  part  of  the  vendor,  and  when  a  full  com- 
pensation can  be  made  in  money.'  This  is  undoubtedly  the 
rule  in  equity,  but  it  seems  it  may  not  always  be  invoked  at 
law;  and  where  a  vendor  brings  his  action  not  to  compel  a 
specific  performance  but  to  recover  damages  for  a  refusal  to 
perform,  he  must  be  held  strictly  to  the  very  terms  of  his 
agreement,  and  show  performance  of  all  the  conditions  neces- 
sary to  be  performed  on  his  part  to  put  the  vendee  in  default. 
A  vendee  is  ordinarily  entitled  to  the  property  in  the  condi- 
tion in  which  it  was  when  bargained  for,  and  he  may  refuse 
to  take  it  in  an  altered  or  inferior  condition;  and  while  a  court 
of  equity  will  in  most  instances  decree  performance  where  it 
is  apparent  that  compensation  can  be  made  in  money  for  the 
altered  condition  of  the  property,  yet  at  law  the  vendor  by 
liis  own  failure  to  perform  would  have  no  right  of  action  for 
damages  against  his  vendee.- 

1  The  general  equity  doctrine  is  were  at  the  time  -various  fixtures, 
that,  although  there  may  be  a  defi-  consisting  of  partitions,  gas-pipe, 
ciency  in  the  property  sold,  if  the  plumbing,  etc.,  which  had  been  put 
deficiency  is  inconsiderable,  and  does  in  by  a  tenant,  who  afterwards  and 
not  materially  affect  the  value  of  the  before  the  tender  of  a  deed  re- 
remainder,  the  purchaser  may  be  moved  them,  in  consequence  of  which 
compelled  to  accept  compensation  defendant  refused  to  take  title.  T. 
for  such  deficiency  and  perform  the  offered  to  make  compensation,  but 
agreement.  De  Wolf  v.  Pratt,  42  this  was  also  refused.  In  an  action 
111.  198.  to  recover  damages,  held,   that  the 

2  As  where  T.  entered  into  a  con-  defendant  was  entitled  to  the  stoies 
tract  with  defendant,  by  which  T.  in  the  condition  they  were  when  bar- 
agreed  to  sell  to  defendant,  and  the  gained  for,  and  his  refusal  to  take 
latter  agreed  to  purchase,  certain  them  with  the  fixtures  removed  was 
lots  upon  which  were  stores,  and  to  not  a  breach  of  the  contract,  and  that 
convey  the  same  by  warranty  deed  the  action  was  not  maintainable, 
free  from  all  incumbrances.     There  Smyth  v.  Sturges,  108  N.  Y.  495. 


PART  III. 


THE   CONVEYANCE. 


CHAPTER  XIL 


THE  MEDIUM  OF  TRANSFER. 


1. 

Deeds  —  Defined 
guished. 

and 

distin- 

Ml. 

2. 

Forms  of  conveyance. 

12. 

3. 

Deeds  of  bargain 

and  sale. 

4. 

Warranty  deeds. 

13. 

5. 

Quitclaim  deeds. 

14. 

6. 

Release. 

Ga 

Confirmation. 

15. 

7. 

Surrender. 

8. 

Assignment. 

16. 

9. 

Defeasance. 

17. 

0. 

Covenani  to  stand  seized. 

18. 

Imperfect  deed  —  Operation 
and  effect. 

Time  to  prepare  deed  —  De- 
mand for  same. 

Vendee's  right  to  inspect  deed. 

Vendee  not  required  to  take 
deed  from  tliird  party. 

When  contract  has  been  as- 
signed. 

Objections  to  deed. 

Duty  of  preparing  deed. 

What  conveyance  is  suflBcient. 


§  1.  Deeds  —  Defined  and  distinguished.  The  operative  in- 
strument whereby  the  transiuissal  of  title  is  effected  is  generally 
termed  a  deed  —  a  name  of  very  ancient  origin  and  extensive 
signification.  It  applies  to  the  conveyance  of  every  species  of 
property,  and  in  its  widest  sense  includes  every  instrument  un- 
der seal  containing  a  contract  or  agreement  Avliich  has  been 
delivered  by  the  party  to  be  bound  and  accepted  by  the 
obligee  or  covenantee. 

Originally  deeds  of  land  were  complicated  in  form/  highly 


'The  elementary  writers  classify 
common-law  deeds  as  follows:  Five 
original  conveyances,  to  wit:  Feoff- 
ment, Gift,  Rent,  Lease,  Exchange 
and  Partition ;  five  derivative  convey- 
ances, to  wit:  Release, Confirmation, 
Surrender,  Assignment  and  Defea- 
sance ;  and  five  conveyances  derived 


from  the  statute  of  uses,  to  wit : 
Covenant  to  stand  seized  to  uses.  Bar- 
gain and  sale,  Lease  and  release. 
Deed  to  lead  or  declare  the  uses  of 
other  more  direct  conveyances,  and 
Deeds  of  revocation  of  uses.  Willard, 
Conveyancing,  419;  3  Wash.  Real 
Prop.  ch.  5. 


334  CONVEYANCE. 

technical,  and  very  verbose,  but  modern  conveyancing  has  re- 
duced thera  to  very  simple  forms;  while  the  liberal  construc- 
tion of  courts,  together  with  radical  statutory  changes,  have 
stripped  them  of  their  technical  features. 

According  to  the  earlier  cases  as  well  as  many  later  con- 
lirmatory  authorities,  deeds  to  be  valid  and  effectual  must  be 
in  writing,  and  upon  pai'chment  or  paper;  must  be  between 
parties  competent  to  give  and  receive  title;  must  be  freely 
made,  and  completely  written  before  delivery. 

Anciently  a  distinction  was  made  between  deeds  of  feoff- 
ment^ and  deeds  of  grant,^  but  this  distinction  no  longer  has 
any  practical  existence;  and,  generally  speaking,  all  deeds  now 
in  common  use  are  deeds  of  grant. 

§  2.  Forms  of  conveyance.  All  of  the  different  kinds  of 
deeds  now  in  common  use  are  but  variations  of  two  original 
forms  which  had  their  origin  in  England  and  have  been  trans- 
mitted to  us  with  the  rest  of  our  inlieritance  of  the  common 
law.  These  forms  are  known  respectively  as  dceds-jjoU  and 
indentures  or  deeds  inter  i^artes.  The  former  was  used  only 
where  the  instrument  was  the  sole  act  of  the  grantor,  and 
where  no  reciprocal  duties  or  obligations  were  imposed  upon 
the  other  party;  the  latter,  on  the  other  hand,  was  employed 

1 A  feoffment  originally  meant  the  all  the  lands  contained  therein.     If  a 

gift  of  a  feud,  but,  since  the  abolition  lessee  is  in  possession  his  consent  is 

of  feudal  tenures  in  England,  signi-  necessary  to  livery.     Livery  in  laiv 

fies  the  convej'ance  of  an  estate  in  is  where  the  parties  are  not  upon,  but 

fee-simple.     Livery  of  seizin  was  the  only  in  sight  of,  the  land ;   and  the 

distinguishing  feature  of  feoffment,  feoffor  pointing  it  out,  gives  it  to  the 

which  in  the    United  States  is  un-  feoffee,  and  authorizes  him  to  take 

known;  execution,  delivery  and  reg-  possession.    This,  however,  is  a  mere 

istration  being  sufficient  to  pass  title,  license  or  authority,  which  must  be 

although  the  possession  remains  un-  consummated  by  actual  entry  ;  and  if 

changed.    Livery  of  seizin,  as  defined  either  of  the  parties  die  before  entry 

by  the  ancient  writers,  is  either  in  the  transfer  does  not  take  effect.  But 

deed  or  in  laiu.    The  former  is  where  if  the  feoffee  dare  not  enter  for  fear 

the  parties  go  upon  the  land,  and  the  of  his  life,  a  claim  as  near  the  land  as 

feoffor,  by  some  symbolical  act,  as  possible  will  be  sufficient.     Co.   Lit. 

the  delivery  of  a  twig,  turf,  or  latch  48  b;  2  Hill.  Abridg.  c!07. 

of  a  door,  or  even  by  express  words  -A  grant  at  common   law  is  the 

witiiout  any  act,  gives  possession  to  conveyance  of  incorporeal  heredita- 

the  feoffee.     Mere  delivery  of  a  deed  ments,  such  as  rents,  commons,  etc., 

on  the  land  is  not  sufficient,  unless  which   are  therefore   said   to   lie   in 

it  be  made  m  the  name  of  seizin  of  grant  and  pass  only  by  deed. 


MEDIUM    OF   TRANSFEK.  335 

in  cases  wliere  there  were  mutual  transfers  or  covenants;  and 
while  the  former  consisted  only  of  one  instrument,  signed 
by  the  <^rantor  and  delivered  to  the  grantee,  the  latter  con- 
sisted of  two  or  jnore  j)arts,  executed  by  all  of  the  parties,  and 
interchangeably  delivered  one  to  the  other.  The  name  in- 
denture is  said  to  have  been  derived  from  the  practice  of 
writing  both  parts  of  the  agreement  upon  one  parchment, 
with  certain  letter  between  them,  and  then  cutting  the  parts 
asunder  in  acute  angles.' 

Although  the  forms  have  been  retained  the  practical  dis- 
tinction between  deeds-poll  and  indentures  has  ceased  to  ex- 
ist; and,  while  indenture  is  the  proper  and  customary  form  for 
deeds  inter  jxa'tes,  it  is  not  uncommon  to  find  deeds-poll  in 
fact  that  employ  the  formuhx  of  indentures.'- 

Much  formality  was  formerly  employed  in  framing  a  deed, 
which  for  the  sake  of  convenience  was  divided  into  a  number 
of  distinct  parts;'  but  custom  has  long  since  reduced  the 
phrasing  of  these  parts  to  comparatively  brief  clauses,  while 
the  legislatures  in  most  of  the  states  have  practically  abro- 
gated all  of  the  ancient  formal  parts. 

§  3.  Deeds  of  bargain  and  sale.  The  modes  of  conveyance 
now  most  prevalent  in  the  United  States  are  those  derived 

iSee2  Hill.  Abridg.  280;  2  Sliars.  ^xhe  foimal  parts  of  a  common- 
Black.  Com.  £94.  Where  a  question  law  deed  are  as  follows: 
arose  whether  a  certain  ancient  trans-  The  xwemises,  which  consists  of  the 
fer  was  a  deed  or  an  authorized  trans-  introductory  part,  including  the  date 
fer  upon  the  town  books,  it  was  held  (although  this  is  sometimes  placed  at 
that  the  fact  of  its  purporting  to  be  the  end),  the  parties,  the  considera- 
an  indenture  (as  well  as  to  be  signed,  tion  recitals,  the  grant,  the  descrip- 
sealed  and  delivered)  proved  it  to  be  tion,  and  exception,  if  any. 
a  deed.    Merwin  v.  Camp,  3  Conn.  41.  The  habendum,  which  declares  the 

-The  indenture  is  the  form  of  con-  estate  or  interest  granted,  although 

veyance  in  common  use  in  a  major-  this  may  also  be  done  in  the  premises, 

ity  of  the  states,  while  the  use  of  the  The  tenendum,  which  accompanies 

deed-poll  is  mainly  confined  to  the  the    habendum,    and    expresses    the 

states  of  Alabama,  Arkansas,  Con-  tenure  of  the  estate, 

necticut,    Iowa,    Elaine,    Massachu-  The  reddendum,  or  reservation  to 

setts,    Nebraska,    New    Hampshire,  the  grantor  of  some  new  thing  in  the 

North  Carolina,  Ohio,  Oi-egon,  Rhode  land. 

Island,   South  Carolina,   Texas  and  The  conditions,  the  covenants  and 

Vermont.     See  Jones'  Forms  Conv.  the  conclusion,  reciting  the  execu- 

2G0.  tion  and  the  date,  either  expressly  or 

by  reference  to  the  beginning. 


336  CONVEYANCE. 

from  the  English  deed  of  bargain  and  sale  under  the  statute  of 
uses.^  A  bargain  and  sale  was  originally  a  mere  oral  agreement 
for  the  conveyance  of  land  for  a  valuable  consideration,  in  con- 
sequence of  which  a  use  arose  to  the  bargainee.  But  to  check 
the  multiplication  of  secret  conveyances,  an  act  was  passed 
soon  after  the  statute  of  uses  which  required  all  conveyances 
by  way  of  bargain  and  sale  to  be  made  in  writing,  indented 
and  sealed,  and,  if  it  was  a  freehold  estate,  to  be  enrolled  in 
one  of  the  courts  of  record. 

No  livery  of  seizin  was  necessary  to  a  bargain  and  sale  to 
make  the  deed  effectual,  the  statute  executing  the  use  and 
thereby  transferring  the  possession  to  the  legal  title  without 
entry  or  other  act.- 

§  4.  Warranty  deeds.  The  most  familiar  form  of  convey- 
ance known  to  our  law  is  the  deed  of  bargain  and  sale,  tech- 
nically called  a  Avarranty  deed.  The  legal  import  of  a  deed 
of  this  character  is  simply  that  there  is  no  resulting  trust  in 
the  grantor,  who  is  estopped  from  ever  after  denying  its  exe- 
cution for  the  uses  and  purposes  mentioned  in  it,  while  its 
name  is  derived  from  the  personal  covenants  which  follow 

1  In  England  there  are  two  classes  surances  and  of  last  wills,  whereby 
of  conveyances,  which  derive  their  heirs  were  disinherited,  lords  de- 
operation  from  the  statute  of  uses,  prived  of  their  dues,  husbands  and 
The  first  class  consists  of  those  which  wives  of  curtesy  and  dower,  and  per- 
create  a  use  alone,  without  any  juries  committed.  The  statute  then 
transmutation  of  possession  under  proceeds  to  enact  tliat,  where  any 
the  common  law.  The  second  class  i^erson  was  or  should  be  seized  of  any 
consists  of  those  conveyances  which  honors,  manors,  lands,  tenements, 
transfer  the  land  as  by  a  common-  rents,  services,  reversions,  remain- 
law  assurance,  and  in  addition  thereto  ders  or  other  hereditaments  to  the 
raise  or  declare  a  use  upon  the  legal  use,  confidence  or  trust  of  any  pei'- 
estate  vested  in  the  grantee.  To  the  son  or  body  politic,  the  latter  should 
former  class  belong  a  bargain  and  have  the  legal  seizin  and  possession, 
sale,  and  a  covenant  to  stand  seized  nominally  given  to  the  former,  and 
to  uses;  to  the  latter,  a  feoffment  corresponding  to  the  use,  trust  and 
and  a  fine  made  to  one  person  to  the  confidence  held  previoush'  to  the 
use  of  another.  statute    in    lands    so    Hmited ;  and, 

2Thestatuteof  27 Hen.  VIII., called  where  lands  were  limited  to  several 
the  statute  of  uses,  recites  that  by  persons  to  the  use  of  a  part  of  them, 
the  common-law  lands  could  not  be  the  latter  alone  should  have  the  seizin 
passed  by  will,  but  only  by  livery  of  and  possession.  The  statute  has  been 
seizin;  but  that  divers  subtle  prac-  substantially  re-enacted  in  many 
tices  had  been  introduced  in  the  form  states. 
of  fraudulent  conveyances  and  as- 


MEDIUM   OF   TRA>'8FEE.  337 

the  habendum.  The  operative  words  of  conveyance  in  this 
class  of  deeds  are  "grant,  bargain  and  sell,"  which  in  many 
states  are  express  covenants  of  seizin,  freedom  from  incum- 
brances and  quiet  enjoyment,  unless  their  statutory  effect  is 
rendered  nugator}'^  or  limited  by  express  words  contained  in 
such  deed.*  It  is  still  a  common  practice  for  the  conveyancer 
to  insei't  in  warranty  deeds  as  well  as  in  other  classes  of  con- 
veyances all  the  operative  terms  used  in  transferring  lands; 
as,  ''grant,  bargain,  sell,  remise,  release,  alien,  convey  and  con- 
firm," though  their  presence,  save  where  they  imply  cove- 
nants, is  no  longer  necessary.  This  was  formerly  done  that 
the  instrument  might  take  effect  in  one  way  if  not  in  another, 
and  in  such  case  the  party  receiving  the  deed  had  his  election 
which  way  to  take  it.  Thus,  according  to  the  words  used,  he 
might  claim  either  by  grant,  feoffment,  gift,  lease,  release, 
confirmation  or  surrender.  The  majority  of  the  foregoing 
words  of  grant  are  now  superfluous,  except  that  in  a  few 
states  the  words  "grant,  bargain  and  sell"  must,  under  the 
statute,  be  construed  as  express  or  implied  covenants  for  seizin, 
against  incumbrances,  etc.  ;^  yet  the  rule  that  the  law  of  the 
state  where  the  land  lies  governs  the  interpretation  of  the 
deed  does  not  warrant  the  implication  of  personal  covenants 
not  authorized  by  the  law  of  the  state  where  the  deed  was 
made.  The  question  whether  the  words  shall  import  cove- 
nants must  be  decided  by  the  law  of  the  latter  state.*  It  must 
also  be  understood  that  some  words  evidencing  an  intention 
to  conve}"  must  appear;  but  the  conveyancer  has  a  choice  of  a 
number,  and  the  word  "convey,"  which  is  most  in  use,  fully 
expresses  the  intent,  and  is  effectual  for  all  purposes.* 

§  5.  (Quitclaim  deeds.  There  is  in  common  use  in  the  United 
States  a  species  of  conveyance  derived  from  the  deed  of  bar- 
gain and  sale  under  the  statute  of  uses,  but  bearing  a  strong 
affinity  to  the  old  common-law  deed  of  release,  called  a  quit- 
claim. Its  import  is  a  conveyance  or  release  of  all  present 
interest  in  the  grantor;  but,  unlike  the  common-law  release, 

1  Finley  v.  Steele,  23  111.  50.  deed  in  fee  is  given  in  4  Kent,  Com. 

-Brodie  v.  Watkiiis,  31   Ark.  319;  461;  and  see  Hutchins  v.  Carleton, 

Finley  v.  Steele,  23  111.  .^6.  19  N.  H.  487 ;  Bridge  v.  Wellington, 

3  Bethel  v.  Bethel,  54  Ind.  428.  1  Mass.  219. 
•*  An   extremely  simple  form  of  a 


338  CONVEYANCE. 

Avhich  was  only  effectual  in  favor  of  some  person  in  possession, 
or  who  claimed  or  had  some  interest  in  the  land,  it  is  equally 
available  as  a  mode  of  conveying  an  independent  title,  and  for 
all  practical  purposes  is  regarded  as  an  original  conveyance. 
Aquitclaim  deed  is  as  effectual  for  transferring  the  title  to  real 
estate  as  a  deed  of  bargain  and  sale,  and  passes  to  the  grantee 
all  the  present  interest  or  estate  of  the  grantor,  together  with 
the  covenants  running  with  the  land,  unless  there  be  special 
words  limiting  and  restricting  the  conveyance.  But  while  a 
(quitclaim  deed  is  as  effectual  to  pass  title  as  a  deed  of  bargain 
and  sale,  still,  like  all  other  contracts,  it  must  be  expounded 
and  enforced  according  to  the  intention  of  the  parties  as  gath- 
ered from  the  instrument;  and  if  the  words  used  indicate  a 
clear  intention  to  pass  only  such  land  or  interests  as  the  grantor 
then  owns,  lands  embraced  in  a  prior  valid  deed  have  been 
held  to  be  reserved  from  its  operation,  even  though  such  prior 
deed  remains  unrecorded. 

§  6.  Release.  The  term  "  release,"  in  its  popular  and  lim- 
ited sio:nification,  is  used  to  denote  the  instrument  whereby 
the  interest  conveyed  by  a  mortgage  is  reconveyed  to  the 
owner  of  the  fee,  and  it  is  also  used  generally  to  designate 
the  conveyance  of  a  right  to  a  person  in  possession.  In  En- 
gland it  obtains  in  a  fourfold  form,  and  is  one  of  the  most 
important  of  the  common-law  forms  of  conveyance.  In  the 
United  States  the  technical  principles  relating  to  deeds  of  this 
character  are  wholly  or  in  a  great  measure  inapplicable,  while 
the  conveyance  which  corresponds  to  a  release  at  common  law 
is  the  popular  quitclaim  deed  —  the  operative  words  of  convey- 
ance being  the  same  in  both  deeds.  Where  a  deed  remising 
and  releasing  premises  contains  a  covenant  of  warranty  of 
ti.tle,  either  general  or  simply  as  against  the  claims  of  all  per- 
sons claiming  under  the  grantor  only,  and  particularly  if  the 
habendum  be  to  the  grantee,  his  heirs,  etc.,  it  will  not  be  a 
simple  release,  but  a  conveyance  of  the  fee;  and  a  title  subse- 
quently acquired  by  the  grantor  will  inure  to  the  grantee  un- 
less it  is  derived  from  sale  under  an  incumbrance  assumed  by 
the  grantee.^ 

1  People  ex  rel.  Weber  v.  Herbel,    veyance  operating  in  part  under  the 
93  111.  384.     There  is  a  mode  of  con-   statute  of  uses  which  at  one  time 


MEDIUM    UK    TKANSFER. 


339 


§  6a.  Con  fir  111  at  ion.  The  term  "  confirmation  "  is  used  to 
designate  that  species  of  conveyance  whereb}'  an  existing 
right  or  voidable  estate  is  made  sure  and  unavoidable  or  where 
a  particular  interest  is  increased.  The  appropriate  technical 
words  of  confirmation  are  "  ratify,  approve  and  confirm,"  but 
"grant  and  convey"  or  similar  terms  will  have  the  same  ef- 
fect. Deeds  of  confirmation  are  not  in  general  use, as  a  "quit- 
claim "  is  effective  for  almost  ever}'  purpose  which  might  bo 
accomplished  b}'  the  former.  Frequently,  however,  recitals  in 
deeds  show  them  to  be  given  in  ratification  or  confirmation 
of  previous  acts  and  to  correct  errors,  irregularities  or  infirm- 
ities in  former  deeds,  in  which  event  the}'  take  effect  by  relation 
as  of  the  date  of  the  former  act  of  deed,  and  the  confirmatory 
words  become  material  to  interpret  and  explain  the  undis- 
closed intention  or  correct  the  irregularity  of  the  former  deed. 

§  7.  Surrender.  A  surrender  is  defined  as  the  yielding  up 
of  an  estate  for  life  or  years  to  him  who  has  an  immediate 
estate  in  reversion  or  remainder,  the  lesser  estate  bein^:  merfjed 
in  the  greater  by  mutual  agreement;  and  the  term  is  applied 
both  to  the.  act  and  the  instrument  by  which  it  is  accom- 
plished. It  is  directly  opposite  in  its  nature  to  a  release,  which 
technically  operates  by  the  greater  estate  descending  upon 
the  lesser.  The  operative  words  of  a  conveyance  of  this  nat- 
ure are  "surrender  and  yield  up,"  but  any  form  of  words  that 
indicates  the  intention  of  the  parties  will  serve  the  same  pur- 
was  often  recognized  in  the  United  some  method  not  requiring  the  pub- 
States  and  is  said  to  be  the  common  licity  of  such  enrollment  or  of  actual 
mode  of  conveyance  in  England,  possession.  The  latter  statute  being 
This  species  of  conveyance  is  called  held  inapplicable  to  conveyances  for 
a  lease  and  release;  and  while  it  years,  this  method  was  found  in  mak- 
seems  to  have  been  employed  in  this  ing  a  bargain  and  sale  for  a  year,  and 
country  during  the  latter  part  of  the  subsequently  a  common-law  release 
last  century  is  now  unknown,  having  enlarging  the  estate  of  the  bargainee 
been  sujjerscded  by  the  deed  of  bar-  into  a  fee.  The  release  would  take 
gain  and  sale.  A  lease  and  release  is  effect  though  the  bargainee  never 
in  fact  a  bargain  and  sale  for  a  year,  had  actual  possession,  because  the 
«nd  a  common-law  release  operating  statute  of  uses  without  possession 
by  way  of  enlargement.  After  the  vested  the  actual  estate  in  him,  upon 
statute  of  uses,  and  the  subsequent  which  the  release  could  operate, 
statute  recjuiring  enn  llment  of  deeds  This  point,  though  once  doubted,  was 
of  bargain  and  sale,  it  became  an  ol>  at  length  fully  settled.  2  Hill.  Abridg. 
ject  to  transfer  the  use  in   land  by    330;  4  Cruise,  Dig.  103. 


340  CONVKYANCE. 

pose;  while  a  surrender  is  always  implied  when  an  estate  in- 
compatible with  the  existing  estate  is  accepted.  Though  the 
books  on  conveyancing  still  continue  to  give  ample  forms  for 
deeds  of  surrender,  the  quitclaim  deed  in  common  use  has 
taken  its  place  for  most  purposes;  but  it  would  seem  that  this 
is  still  the  proper  instrument  for  the  relinquishment  of  lease- 
hold interests,  dower,  etc.^ 

§  8.  Assigunieut.  An  assignment  is  a  mode  of  conveyance 
applicable  to  any  estate  in  lands  whatever;  but  the  term  is 
usually  employed  to  express  the  transfer  of  an  equitable  estate 
or  a  leasehold  interest.  The  operative  words  of  conveyance 
are  "assign,  transfer  and  set  over,"  but  any  other  words  evinc- 
ing an  intention  to  make  a  complete  transfer  are  sufficient. 

§  9.  Defeasance.  A  defeasance  has  been  defined  as  a  col- 
lateral deed,  made  at  the  same  time  with  a  feoffment  or  grant, 
containing  certain  conditions  upon  performance  of  which  the 
estate  thereby  created  may  be  defeated.^  It  differs  from  a 
condition  in  nothing  but  that  the  latter  makes  a  part  of  the 
conveyance  itself,  while  the  former  constitutes  a  separate  in- 
strument. 

§  10.  Covenant  to  stand  seized.  There  is  another  form  of 
conveyance,  operating  by  the  statute  of  uses,  called  a  covenant 
to  stand  seized  to  uses.  Formerly,  if  one  person  covenanted 
for  himself  and  his  heirs  that  for  a  certain  consideration  an- 
other should  have  his  land,  though  the  land  did  not  pass  for 
want  of  livery,  j^et  the  covenantee  gained  the  use;  and  after 
the  enactment  of  the  statute  of  uses  the  use  thus  acquired 
became  executed  by  the  statute  and  the  party  to  be  benefited 
at  once  placed  in  possession  of  the  land.  This  form  of  deed 
seems  to  have  been  a  very  peculiar  species  of  conveyance,  con- 
fined entirely  to  family  connections  and  founded  on  the  tender 
consideration  of  blood  or  marriage;''  but  this  limitation,  while 

lAt  common  law  lands  might  be  after  a  lease  for  life.     So  an  estate  by 

surrendered  without  deed  or  livery,  the  curtesy  or  in  dower.     4  Cruise, 

But  things  lying  in  grant  could  not,  Dig.  79. 

as  a  deed  was  necessary  to  create  -  4  Cruise.  Dig.  82. 

them.     And  even  such  things,  lying  ^See  Jackson  v.  Sebring,  16  Johns, 

in  grant,  as  were  not  created  by  deed,  (N.  Y.)  515 ;  French  v.  French,  15  N. 

were  subject  to  the  same  rule;  as,  H.  381. 
for  instance,    a  remainder    for  life 


MEDICM    OF   TIIAXSKER.  341 

undoubtedly  ex  presiding-  the  English  law  on  the  subject,  has 
been  denied  in  some  of  the  later  American  cases,  which,  while 
admitting  that  the  law  recognizes  the  natural  nfTections,  and 
the  mutual  obligation  of  support  which  sj)rings  from  the 
family  relations,  as  affording  a  good  and  meritorious  consid- 
eration for  a  deed  of  conveyance,  3'et  deny  that  any  form  of 
conveyance  can  be  so  consecrated  by  a  mere  sentiment  that  it 
cannot  be  permitted  to  operate  between  any  parties  other  than 
relatives,  nor  upon  a  pecuniary  consideration.  Upon  ever}' 
jirinciple  of  the  law  of  contracts,  money  is  now  considered  as 
a  suflicient  consideration  for  the  support  of  any  contract 
whatever,  so  far  as  its  validity  depends  upon  a  consideration 
as  such;  and  it  may  be  safely  asserted  that  the  distinction 
between  a  deed  of  bargain  and  sale  and  a  covenant  to  stand 
seized,  so  far  as  the  same  may  depend  upon  the  nature  of  the 
consideration,  does  not  at  the  present  time  exist  in  this 
country.' 

Xor  can  a  mere  covenant  to  convey  now  be  said  to  operate 
to  transfer  an  estate;  and  although,  for  certain  purposes,  courts 
of  equity  will  regard  a  covenantee  as  possessed  of  an  equitable 
interest  in  the  land,  yet  at  law  such  a  covenant  can  generally 
have  no  higher  effect  than  a  personal  contract  affording  a 
foundation  for  damages  in  law  or  grounds  for  relief  by  way  of 
specific  enforcement  in  equity. 

But  while  conveyances  of  this  character  have  practically 
ceased  to  exist,  the  principle  and  rules  which  pertained  to  them 
have  to  some  extent  been  retained,  and  in  the  furtherance  of 
intention  courts  still  resort  to  them  to  give  effect  to  deeds 
which  by  reason  of  insufficiency  are  unable  to  operate  in  other 
ways.^ 

1  See  Trafton  v.  Hawcs,  103  Mass.  death  to  the  use  of  the  grantee.  Wal- 
533;  Parker  v.  Nichols,  7  Pick.  (Mass.)  lis  v.  Wallis,  4  Mass.  135. 
111.  If  a  father  bargain  and  sell  -SeeE.Kum  v.  Canty,  34  Miss.  569; 
land,  with  warranty  to  his  child  or  Horton  v.  Sledge,  29  Ala.  478.  A 
grandchild,  to  hold  from  the  grantor's  quitclaim  deed  in  common  form,  ex- 
death,  the  law  will  presume  a  good  cept  that  the  habendum  clause  pro- 
consideration  in  addition  to  tlie  val-  vides  that  the  conveyance  shall  take 
uable  consideration  expressed  in  the  effect  from  and  after  the  day  of  the 
deed,  and  construe  it  a  covenant  of  grantor's  decease,  is  to  be  construed 
the  grantor  to  stand  seized  to  his  as  a  covenant  to  stand  seized,  espe- 
own  use  during  his  life,  and  after  his  cially  where  the  intent  is  unmistak- 


342  CONVEYANOB. 

§  11.  Imperfect  deed  —  Operation  and  effect.  The  rule  is 
strongly  established  in  equity  that  a  contract  evidenced  by  a 
"writing  cannot  be  defeated  by  innocent  mistake  or  error;  and, 
in  pursuance  of  this  principle,  a  long  list  of  authorities  confirm 
the  doctrine  that  where  a  deed  is  insufficient  as  a  conveyance 
it  may  still  have  effect  as  an  executor}--  contract  to  convey. 
Notwithstanding  a  deed  may  be  technically  defective,  yet,  if 
made  by  a  person  possessing  title,  it  will  still  be  good  as  be- 
tween the  parties,  so  as  to  bind  the  lands  conveyed  in  the 
hands  of  the  grantor,  his  heirs,  and  all  others  claimmg  under 
him  by  operation  of  law,  as  well  as  subsequent  purchasers 
with  notice;^  and  courts  of  equity  will  always  interfere  for 
the  relief  of  a  vendee  who  has  taken  by  a  defective  couvej^- 
ance,  and  compel  a  proper  transfer.- 

The  rule  is  applied  in  all  cases  where  there  has  been  a  casual 
omission  by  accident  or  mistake  of  some  technical  require- 
ment necessary  to  make  an  instrument  valid  or  effectual;'  and 
even  where  a  deed,  duly  executed  and  otherwise  complete, 
fails  through  misdescription  to  convey  the  land  intended,  it 
may  still  be  treated  as  a  contract  to  convey  which  equity  will 
enforce.* 

§12.  Time  to  prepare  deed — Demand  for  same.  The  gen- 
eral rule  is  that  w^hen  a  party  agrees  to  perform  an  act,  and  no 
time  is  specified  for  its  completion,  he  must  have  a  reasonable 
time  for  the  purpose;  and  to  be  put  in  default  the  opposite 
party  must  demand  its  performance.  In  pursuance  of  this 
rule  it  has  been  held  that  where  the  vendor  of  land  receives 
the  purchase  money  for  the  same  and  agrees  to  convey  it  to 

able  from  the  relationship  of  the  par-  3  An  instrument  purporting  to  oon- 

tie3.     The  deed  is  not  invalidated  by  vey  land,  but  which  by  mistake  has 

the  fact  that  its  terms   attempt  to  only  one  witness,  and  is  not  sealed, 

create  an  estate   in  fee  in  futuro.  is  in  equity  a  contract  to  convey  the 

Kent  V.  Atlantic  Delaine  Co.  8  R.  I.  land  described,  and  the  consideration 

305.  expressed  will  be  presumed  to  be  the 

iMastin  V.  Halley,  61  Mo.  199;  Ross  true    consideration   for  the  convey- 

V.  Worthington,  11  Minn.  442;  Wads-  ance.    Dreutzer  v.  Lawrence,  58  Wia. 

worthV.  Wendell,  5  Johns.  Ch.(N.Y.)  594.    And  see  Brinkley  v.  Bethel,  9 

224.  Heisk.  (Tenn.)  789;  McCarley  v.  Su- 

2Mastinv.  Halley,  61  Mo.  199;  Con-  pervisors,  58  Miss.  486. 

rad  v.  Schwamb,  53  Wis.  372;  Jewell  *  Conrad  v.  Schwamb,  53  Wis.  372. 
V.  Harding,  72  Me.  126. 


MEDIUM    OK   TKAXSFER.  343 

the  purchaser,  but  no  time  is  specified,  he  is  entitled  to  a  rea- 
sonable time  within  which  to  make  the  conveyance,  and  the 
purchaser  in  such  case  should  demand  a  deed;  and  the  vendor 
should  refuse  or  neglect  to  comply  with  the  demand  before 
the  purchaser  can  recover  back  the  money  paid  by  him  as  the 
consideration  of  the  conveyance.^ 

It  has  further  been  held  that  a  vendor  of  lands  who  has 
covenanted  to  convey  b}'  a  day  certain  is  not  in  default  until 
the  party  who  is  to  receive  the  conveyance,  being  entitled 
thereto,  has  demanded  it,  and,  having  waited  a  reasonable 
time  to  have  it  drawn  and  executed,  has  made  a  second  de- 
mand.2  It  seems,  however,  that  the  purchaser  may  avoid  the 
necessity  of  a  second  demand  by  tendering  on  the  first  demand 
a  deed  prepared  for  execution;^  nor  will  a  second  demand  be 
necessary  if  on  tbe  first  demand  the  vendor  refuse  to  execute 
the  deed/  So  where  there  are  several  persons  jointly  bound 
to  execute  a  deed,  and  the  same  is  demanded  of  one  of  them 
and  refused,  no  demand  of  the  others  will  be  necessarj^  — the 
refusal  of  one  subjects  all  to  an  action.^ 

§  1 3.  Vendee's  right  to  inspect  deed.  It  would  seem  rea- 
sonable that,  under  the  practice  which  prevails  in  this  coun- 
try, whereby  the  vendor  and  not  the  vendee  prepares  and 
tenders  the  deed,  the  vendee  should  have  suitable  opportunity 
of  examining  the  same  before  he  pays  the  purchase  money, 
and  that  the  vendor  should,  upon  demand  made,  exhibit  such 
deed  tliat  the  vendee  might  found  any  proper  objections  to  its 
form  or  substance.  Ordinarily,  however,  the  delivery  of  the 
deed  and  the  payment  of  the  purchase  money  are  contempo- 
raneous acts;  and  while  inspection  may  follow  at  such  a  time 
as  an  incident,  it  does  not  appear,  unless  the  contract  so  pro- 
vide, that  a  vendee  has  the  right  to  insist  upon  an  inspection  of 
his  vendor's  deed  before  paying  the  purchase  money  agreed 
upon.®     But  where  the  purchaser  offers  to  make  payment  on 

^Kime  v.  Kiine,  41  III.  397.  ^  Under  a  contract  for  the  sale  and 

2  Connelly  V.  Pierce,  7  Wend.  (N.Y.)   conveyance  of  land,  the  purchaser 

129.  was  to  make  payment  on  or  before  a 

'Connelly  V.  Pierce,  7  Wend.  (N.Y.)   day  named,   when   the  vendor  was 

129.  to  deliver  conveyance.     On  tlie  day 

^  Blood  V.  Goodrich,  9  W^end.  68.  preceding  this  day,  the  assiynoe  of 
*  Blood  V.  Goodrich,  9  Wend.  68.       the    purchaser,    having   the    money 


344  OONVEYAKCE. 

inspection  of  the  deed,  provided  it  shall  prove  satisfactory, 
and  the  vendor  refuses  to  allow  inspection,  though  stating 
that  he  has  the  same  prepared  and  ready  for  delivery  on  pay- 
ment, this  will  not  be  regarded  as  a  sufficient  tender  of  the 
deed,  or  a  manifestation  of  such  a  willingness  to  comply  with 
his  contract  as  will  authorize  him  then,  on  the  refusal  of  the 
purchaser  to  perform,  to  file  a  bill  to  cancel  the  contract.^ 

Possibly  the  proof  of  a  local  custom  to  afford  purchasers  an 
opportunity  to  inspect  the  deed  before  requiring  them  to  make 
lia3'ment  might  be  shown  in  cases  similar  to  the  foregoing; 
but  in  order  to  do  this  there  should  also  be  evidence  to  prove 
that  the  custom  was  uniform,  long  established,  generally  ac- 
quiesced in,  and  so  well  known  as  to  induce  the  belief  that  the 
parties  contracted  with  reference  to  it;'-'  but  unless  this  is  also 
shown  the  evidence  of  custom  should  be  excluded.  And  the  at- 
tempt to  show  such  a  custom  is  open  to  the  further  objection 
that,  unless  the  delivery  of  the  deed  is  made  a  precedent  act, 
it  is  impossible  that  there  could  be  a  custom  to  allow  a  party 
to  inspect  a  deed  at  a  time  when  there  is  no  legal  duty  to  have 
such  deed  made  and  ready  for  delivery.^  Thus,  where  a  deed 
is  to  be  delivered  and  possession  given  on  payment  of  a  sum 
certain,  the  payment  of  the  consideration  must  precede  the 
right  of  the  purchaser  to  receive  a  deed.^ 

§  14.  Yeiulor  not  required  to  take  deed  from  third  party. 
Where  one  party  agrees  to  convey  to  another  by  warranty 
deed  a  certain  tract  of  land,  the  legal  title  to  which  is  vested 
in  a  third  person,  the  procuring  of  the  conveyance  of  the  land 
by  such  third  person,  with  his  warranty  will  not  answer  its  re- 
quirements;^ the  party  who  was  to  receive  the  deed  is  entitled 

necessary,  offered  to  pay  it,  if,  upon  ^  Turner  v.  Dawson,  50  III.  85;  and 
inspection  of  the  deed,  it  should  see  §  14,  ch.  4,  supra. 
prove  satisfactory,  which  inspection  ^Papin  v,  Goodrich,  103  111.  86,  In 
the  vendor  refused,  but  offered  to  this  case  the  purchaser  demanded 
deliver  the  same  on  deposit  of  the  inspection  of  the  deed  on  the  day 
money  with  his  banker,  which  the  fixed  for  the  payment  of  purchase 
assignee  refused  to  do.  Held,  that  money  and  delivery  of  deed, 
neither  party  wjis  relieved  from  his  ^  Terry  v.  George,  37  Miss.  589 ; 
obligation  under  the  contract  by  Headley  v.  Shaw,  39  111.  354;  Rabb 
what  then  transpired.  Papin  v.  v.  Montgomery,  20  Johns.  (N.  Y.)  15. 
Goodrich,  103  111.  86.  5  Hussey  v.    Roquemore,   27   Ala. 

1  Papin  v.  Goodrich,  103  111.  86.  281 ;  but  see  Dresel  v.  Jordan,  104 

Mass.,  407. 


MEDIUM    OF   TRANSFER.  345 

to  have  the  personal  covenants  of  him  who  agreed  to  convey 
as  a  further  security  for  his  title.' 

§15.  When  contract  has  been  assii;ne(I.  When  a  vendee 
has  contracted  for  the  purchase  of  land  and  sold  it  to  another, 
the  latter  will  be  entitled  to  receive  from  the  first  vendor  the 
same  kind  of  deed  which  he  contracted  to  ijive  his  vendee.^ 

§  1().  Objections  to  deed.  It  is  the  dut}'  of  the  purchaser, 
upon  tendei'  of  deed,  to  raise  and  urge  whatever  objections  he 
may  have  cither  as  to  form  or  substance;  and  althoui^h  the  deed 
tendered  by  the  vendor  may  not  conform  to  the  terms  of  the 
contract,  3'et  if  the  vendee  makes  no  objection  to  the  same,  but 
merely  declares  his  inability  to  pay  for  the  land,  it  seems  that 
he  thereby  waives  all  objections  to  the  deed  and  cannot  raise 
the  objections  upon  a  suit  afterwards  brought.^  It  has  also 
been  held  that  where  the  deed  presented  is  objectionable  in 
substance,  or  fails  to  conform  to  the  agreement,  the  vendee 
should  prepare  a  deed  and  present  it  to  the  vendor  for  execu- 
tion before  the  vendor  can  be  put  in  default.* 

The  foregoing  principles  are  more  particularly  applicable  to 
a  purchaser  who  has  been  let  into  possession,  and  against  such 
the  rule  will  usually  be  strictly  enforced;  nor  can  a  purchaser 
who  has  had  possession  sustain  his  refusal  to  take  a  deed  by 
the  fact  that  it  was  not  tendered  punctually.*  Where  a  pur- 
chaser goes  into  possession  under  an  agreement  to  purchase, 
and  some  of  the  payments  are  deferred,  the  title  papers  re- 
maining in  escrow  until  the  payments  are  made,  after  an  oc- 
cupation  of  four  years,  knowledge   that  the   papers  are  in 

'Crabtree  v.  Levings,   53  III.  52fi;  in  it;  and  where,  from  the  evidence 

Rud'l  V.  Savelli,  44  Ark.  145.  produced  on  the  trial,  the  true  sum 

-Gibbs  V.  Blackwell,  37  III.  191.  wliicli  ought  to  have  been  inserted  as 

^Moak  V.  Bryant,  51  Miss.  560.     In  the  consideration  did  not  appear,  the 

this  case  the  vendee  was  in  possession,  court  refused  to  set  aside  a  nonsuit 

and   the   objections  were   raised  for  which   had   been   ordered,  and    inti- 

the  first  time  when  sued  for  the  pos-  mated  their  opinion  that,  to  put  tiio 

session  of  the  land.   And  see  Kennis-  vendor  in  default,  the  vendee  should 

ton  v.  Blakie,  121  Mass.  552.  have  prepared  a  deed  conformable  to 

*  Wliere  a  vendor  of  real  estate,  the  agreement  and  presented  it  to  the 

wlio  was  under  a  contract  to  execute  vendor  for  execution,  who.  on  refusal, 

and  deliver  a  deed  by  a  day  certain,  would  have  been  liable  to  an  action, 

executed  and  tendered  a  deed  which  Hackett  v.  Huson,  3  Wend.  (N.  Y.) 

the  vendee  refused  to  accept,  on  the  249. 

allegation  that  the  true  consideration  5  Curran  v.  Rogers,  35  Mich.  221. 
of  the  conveyance  was  not  expressed 


3iG  CONVEYANCE. 

escrow,  and  payment  of  part  of  the  purchase  money  without 
objection,  will  be  deemed  a  waiver  of  all  formal  exceptions  to 
the  regularity  of  the  papers.* 

Nor  do  the  foregoing  remarks  apply  exclusively  to  the 
vendee.  By  the  English  practice  the  duty  of  preparing  the 
deed  devolves  on  the  vendee,  who  is  required,  in  due  time,  to 
present  the  same  to  the  vendor  for  execution.  This  custom 
does  not  and  never  has  prevailed  in  the  United  States,  where 
the  tender  of  a  properly  executed  deed  is  a  part  of  the  obliga- 
tion of  the  vendor.  But  it  would  seem  that  if  the  vendee,  either 
in  pursuance  of  the  agreement  or  as  a  voluntary  act,  assumes 
such  duty,  a  corresponding  duty  of  seasonable  objection  thereto 
rests  upon  the  vendor;  and  where,  in  pursuance  of  an  agree- 
ment, the  vendee  tenders  for  execution  by  the  vendor  a  differ- 
ent deed  from  that  called  for  by  the  contract,  the  vendor  must 
make  his  objections,  if  he  has  any,  at  the  time  of  presentation 
or  within  a  reasonable  time  thereafter.  He  cannot  be  permitted 
to  retain  the  proposed  deed  without  objection  or  reservation 
of  the  right  to  object,  and  afterwards,  when  sued  for  a  breach 
of  contract,  set  up  the  objection  for  the  first  time  in  answer 
to  the  action.^ 

A  failure  to  object  to  a  deed  when  tendered  cannot  be  said 
to  be  conclusive  on  the  question  of  waiver  of  objections,  how- 
ever; but  it  is  a  significant  circumstance  strongly  tending  to 
indicate  waiver,  and  when  taken  in  connection  with  other 
facts  may  have  an  important  bearing  upon  the  question  when 
presented.^ 

The  obligation  of  the  vendee  cannot  be  enlarged  by  impli- 
cation, nor  can  he  be  made  to  assume  burdens  which  have  not 
been  distinctly  and  specifically  enumerated  in  the  contract. 
For  this  reason  a  tender  of  a  deed  reciting  that  the  grantee 
assumes  the  payment  of  a  mortgage  therein  described  is  not 
a  compliance  by  the  vendor  with  a  contract  that  the  convey- 
ance should  be  made  subject  to  the  incumbrance  of  the  mort- 
gage; nor  will  such  tender  relieve  the  vendor  from  his  obliga- 
tion under  the  contract.* 

J  Thayer  v.  Torrey,  37  N.  J.  L.  339.  ^Gault  v.  Van  Zile,  37  Mich.  22. 

2  Morgan  v.  Stearns,  40  Cal.  434.  *  Mellon  v.  Webster,    5  Mo.   App. 

Compare  Dresel  v.  Jordan,  104  Mass.  449 ;  Kohner  v.    Higgins,  43  N.   Y. 

407.  Sup.  Ct.  4. 


MEDIUM   OF   TEA.N8FEE.  347 

§  1  7.  Duty  of  preparing  deed.  It  seems  that  in  England 
the  duty  of  preparing  and  presenting  the  deed  devolves  upon 
the  purchaser;*  and  this  fact  is  sometimes  cited  in  the  United 
States  as  an  excuse  for  neglect  or  delay  on  the  part  of  the 
vendor.-  It  may  be  safely  asserted,  however,  that  this  rule, 
if  indeed  it  ever  obtained,  has  long  since  been  reversed;  and 
in  most  if  not  all  of  the  states,  unless  there  has  been  some  ex- 
press stipulation  to  the  contrary,  the  vendor  is  bound  to  pre- 
pare the  deed  at  his  own  expense  and  tender  the  same  to  the 
vendee  properly  executed.^  Until  this  has  been  done,  or  an 
offer  of  the  same  made,  no  right  of  action  exists  against  the 
vendee,  unless  by  his  acts  or  conduct  the  vendor  has  been  dis- 
charged or  excused  from  the  performance  of  the  duty.* 

If  a  mortiraire  is  to  be  fjiven  back  bv  the  purchaser  he  must 
prepare  and  execute  one  in  order  to  make  a  proper  tender 
when  demanding  a  conveyance.'^ 

§  18.  What  conveyance  is  sufficient.  In  every  contract  for 
the  sale  of  lands,  whatever  may  be  the  language  in  which  it 
is  couched,  there  is  an  implied  undertaking  to  furnish  a  good 
title,  unless  such  an  obligation  is  expressly  excluded  by  the 
terms  of  the  agreement,^  and,  in  the  absence  of  any  stipulation 
as  to  the  kind  of  conveyance,  to  make  such  a  deed  as  will 
render  the  sale  effectual.''  If  the  contract  calls  for  a  specific 
title  or  method  of  conveyance,  the  purchaser  may  insist  upon 
a  strict  performance,  and  cannot  be  compelled  to  accept  any 
other  or  different  title  or  medium  of  transfer,  notwithstanding 
such  proposed  substitutes  may  be  equally  as  good.^ 

But  under  the  legal  rules  of  construction  now  applied  to 
conveyances  of  land  and  estates  and  interests  therein,  the  form 

1  1  Sug.  on  Vend.  36G  (8tli  Am.  ed.)  Longworth,  14  Pet.  (U.  S.)  172;  Paul 
and  cases  cited.  v.  Brown,  9  Minn.  157. 

2  Taylor  v.  Longworth,  14  Pet.  (U.  *  Parker  v.  Pannlee,  20  Johns.  (N. 
S.)  172.  Y.)  130;  Hunt  v.  Livermore,  5  Pick. 

8  Tinney  V.  Ashley,  15  Pick.  (Mass.)  (Mass.)  395;  Thomas  v.  Lanier,  23 
546;  Hill  v.  Hobart,  16  Me.  164;  Con-  Ark.  639;  Davidson  v.  Van  Pelt,  15 
nelly  v.  Pierce,  7  Wend.  (N.  Y.)  129;    Wis.  341. 

Headley  v.  Show,  39  111.  354;  Wall-       5  Longfellow  v.  Moore,  102  111.  289. 
ing  V.  Kinnard,   10  Tex.  50S;  Seely       <>  Holland  v.  Holmes,  14  Fla.  390; 
V.   Howard,    13   Wis.    336;    Winton   Burwell  v.  Jackson,  9  N.  Y.  514. 
V.   Sherman,  20  Iowa,  295;  Arledge       "Hoffman  v.  Fett,  39  Cal.  109. 
V.   Rooks,  22  Ark.  427 ;  Guthrie  v.       8  Page  v.  Greely,  75  111.  400. 
Thompson,    1   Oreg.    353 ;  Taylor  v. 


348  CONVEYANCE. 

of  the  instrument  of  transfer  has  become  a  matter  of  minor 
importance.  The  technical  operative  words,  whether  of  grant, 
purchase  or  limitation,  have  wholly  or  in  a  large  measure 
lost  their  former  efficacy;  and  although  it  is  still  necessary  to 
eflFectuate  a  conveyance  that  it  contain  apt  words  evincing  an 
intention  to  convey,'  yet  every  part  of  the  instrument  may  be 
resorted  to  for  the  purpose  of  ascertaining  its  true  meaning;^ 
and  generally  any  writing  that  sufficiently  identifies  the  par- 
ties, describes  the  land  and  acknowledges  a  sale  of  the  vendor's 
rights,  if  executed  in  conformity  to  law,  is  a  good  and  valid 
deed  of  bargain  and  sale.^  The  attention  of  the  purchaser  is 
now  mainly  directed  to  the  condition  of  the  vendor's  title,  and 
if  this  is  perfect  in  the  person  proposing  tiie  same,  the  vehicle  of 
conversance  does  not  so  much  matter.  An  ordinary  quitclaim 
is  fully  as  effectual  for  transferring  title  as  a  technical  deed  of 
bargain  and  sale,*  and  will  pass  to  the  grantee  all  the  present 
estate  or  interest  of  the  grantor,*^  together  with  the  covenants 
running  with  the  land,^  unless  there  be  special  words  limiting 
and  restricting  its  operation.  Hence,  a  contract  to  convey  a 
perfect  title  b}''  a  "  good  and  sufficient"  deed  may  be  fuU}'^ 
performed  by  making  a  quitclaim  deed;'^  provided,  of  course, 
that  such  deed  conveys  the  entire  estate^  and  vests  in  the  pur- 
chaser an  indefeasible  title.^  ISTeither  the  implied  nor  expressed 
covenants  add  anything  to  the  title  or  in  any  way  enlarge  the 
estate  granted  save  as  they  may  affect  future  acquisitions  by 
way  of  estoppel,  and  they  are  usually  inserted  only  for  the 
purpose  of  personal  indemnification;  while  the  fact  that  par- 
ties have  made  a  written  agreement  for  a  sale  without  provid- 
ing for  any  covenants  certainlr^^  tends  to  indicate  that  they  did 
not  intend  there  should  be  any.'*' 

iMcKinne}'  v.  Settles,  31  Mo.  541.  ''Kyle  v,  Cavanagh,  103  Mass.  356; 

2  Saunders  v.  Hanes,  44  N.  Y.  353;  Thayer  v.  Torrey,  37  N.  J.   L.  339; 
Collins  V.  Lavalle,  44  Vt.  230.  and  see  Bagley  v.  Fletcher,  44  Ark. 

3  Chiles  V.  Conley's  Heirs,  2  Dana  153. 

(Ky.),  21.  STaftv.  Kessel,  16  Wis.  273. 

*  Morgan    v.    Clayton,    61    111.    35;  ^Delevan  v.  Duncan,  49  N.  Y.  485; 

Rowe  V.  Becker,  30  Ind.  154;  Pingree  Davis    v.    Henderson,   17  Wis.    105; 

V.  Watkins,  15  Vt.  479.  Parker  v.  Parmlee,  20  Johns.  (N,  Y.) 

5  Nicliolsou  V.  Caress,  45  Ind.  479;  130. 

Carter  v.  Wise,  39  Tex.  273.  lo  Jolinston  v.  Mendenhall,  9  W.  Va, 

«  Brady  v.  Spruck,  27  111.  478.  112. 


MEDIUM    OF    TJJANSFKU.  349 

Although  there  is  a  manifest  impropriety  in  permitting  local 
usage  or  custc.:i  to  influence  the  terms  of  an  express  contract, 
particularly  in  sales  of  land,  courts  have  sometimes  interposed 
to  supply  deficiencies  or  omissions  in  such  contracts;  and  it 
has  been  held  that  under  a  contract  for  conveyance  which  is 
silent  as  to  the  character  of  the  deed  to  be  given,  the  pur- 
chaser is  entitled  to  a  deed  with  such  covenants  as  are  usual 
by  the  custom  of  the  place  where  the  land  lies;'  and  the  prin- 
ciple is  also  recognized  in  many  of  the  states  that  a  vendor 
who  makes  a  sale  of  lands  for  his  own  benefit  can,  in  general, 
be  required  to  give  a  coveuant  of  general  warranty.-  But 
these  decisions  do  not  affect  the  general  principle  first  stated, 
and  notwithstanding  they  have  been  made  in  the  interests  of 
justice  and  fair  dealing  their  propriety  may  well  be  questioned. 
Where  parties  desire  and  intend  that  the  conveyance  shall  be 
with  covenants  they  should  so  stipulate;  for  if  a  conveyance  is 
tendered  in  all  respects  efficient  to  conve}'  the  title  and  all 
the  grantor's  interest  in  the  property,  the  imposition  of  any 
further  duties  in  respect  thereto  or  the  assumption  of  any  bur- 
dens in  connection  therewith  should  be  the  subject  of  a  dis- 
tinct and  clearly  expressed  agreement. 

"Where  the  contract  provides  for  a  warranty  deed  this  is 
generally  understood  as  meaning  the  five  covenants  now 
usually  inserted  in  deeds  of  bargain  and  sale. 

A  contract  to  give  a  good  and  sufficient  deed  of  conveyance, 
whether  with  or  without  warranty,  calls  for  an  operative  con- 
veyance—  one  not  merely  good  in  form  but  in  substance  as  well, 
and  which  carries  with  it  the  title  to  the  land;  and  even 
though  the  deed  may  be  with  covenants  of  warranty  it  seems 
that  it  is  not  sufficient  if  the  vendor  has  no  title  or  an  imper- 
fect one.^  The  mere  giving  of  a  warranty  deed  is  not  consid- 
ered as  a  compliance  with  a  covenant  to  convey  b}'  that  form 
of  deed  where  the  title  is  incumbered  or  otherwise  defective. 

>  Gault  V.  Van  Zile,  37  Mich.  22.  Turner,    67    Mo.    296;    Johnston    v. 

-  Faircloth  v.  Isler,  75  N.  C.  551  ;  Piper,  4  Minn.  195 ;  Witter  v.  Biscoe, 

Alien  V.  llazen,  26  Mich.  143;  Linn  13  Ark.,  422. 

V.  Barkly,  7  Intl.  70;  Vanila  v.  Hoj)-  sgverson    v.     Kirtland,    4    Paige 

kins,  1  J.  J.  Marsii.  (Ky.)  293:  Chirk  (N.  Y.),  628. 
V.  Lyons,  25   III.    105;  Hen  y ford   v. 


350 


CONVEYANCE. 


CHAPTER  XIII. 


CONSTRUCTION  OF  DEEDS. 


§ 

1. 

General  rules. 

§    7- 

2. 

Construction      in      favor     of 

grantee. 

8. 

3. 

Ambiguities  and  inconsisten- 

9. 

cies. 

10. 

4. 

The  premises. 

11. 

5. 

Recitals, 

12. 

6. 

Tlie  parties. 

13. 

Presumption  as  to  grantee  — 

Persons  of  same  name. 
Consideration. 
The  liabendum. 
Testamentary  writings. 
Deed  construed  as  mortgage. 
Relation. 
Lost  deeds. 


§  1.  General  rules.  It  is  a  fundamental  rule  in  the  con- 
struction of  deeds  that  effect  must  be  given  to  the  intent  of 
the  parties  when  it  is  plainly  and  clearl}^  expressed,  or  can  be 
collected  or  ascertained  from  the  instrument,  and  is  not  re- 
pugnant to  any  rule  of  law.'  Technical  rules  of  construction 
are  never  to  be  resorted  to  where  the  meaning  is  plain  and 
obvious;'^  and  in  the  exposition  of  deeds  the  construction  must 
be  upon  the  view  and  comparison  of  the  whole  instrament, 
and  with  an  endeavor  to  give  every  part  of  it  meaning  and 
effect.^  So,  too,  while  courts  cannot  give  effect  to  an  instru- 
ment in  writing  so  as  to  do  violence  to  the  rules  of  language 
or  to  the  rules  of  law,  yet  they  are  to  give  it  such  a  construc- 
tion as  will  bring  it  as  near  to  the  actual  meaning  of  the 
parties  as  the  words  which  they  have  seen  fit  to  employ  and 
the  rules  of  law  will  permit.^ 

A  deed  will  be  construed  according  to  its  apparent  intent 


iFlagg  V.  Earaes,  40  Vt.  16;  Car- 
son V.  McCaslin,  60  Ind.  387;  Lehn- 
dorf  V.  Cope.  122  111.  317;  Bent  v. 
Rogers,  137  Mass.  193. 

-'Noyes  v.  Nichols,  28  Vt.  159; 
Huntington  v.  Lyman,  138  Mass. 
205 ;  Kimball  v.  Seinple,  25  Cal.  449. 

3  Jackson  v.  Jleyers,  3  Jolins. 
(N.  Y.)  383 ;  Dickens  v.  Barnes,  79 
N.  C.  490 ;  Jackson  v.  Sliarp,  27  Wis. 
472;  Higginbothan  v.  Stoddard,  72 
N.  Y.  99 :  Cooper  v.  Cooper,  76  111. 
60 ;  Pike  v.  Monroe,  36  Mo.  309. 


*  It  not  infrequently  happens  that 
instruments  cannot  have  the  effect 
intended  by  the  parties,  but  effect  is 
given  to  them  in  another  way  con- 
sistently with  such  intention.  The 
rule  is  "  that  they  shall  operate  ac- 
cording to  the  intention  of  the  par- 
ties, if  by  law  they  may,  and,  if  they 
cannot  operate  in  one  form,  they 
shall  operate  in  that  which  by  law 
shall  effectuate  the  intention."  Peck- 
ham  V.  Haddock,  36  111.  38;  Litch- 
field V.  Cud  worth,  15  Pick.  (Mass.)  28. 


CONSTRLCTION    OF    DLKDS.  351 

where  the  language  is  defective,'  and,  if  necessary,  the  clauses 
of  a  deed  may  be  rejected  or  transposed  so  as  to  give  it  its 
apparent  construction.'^ 

As  a  general  rule,  the  rights  of  the  parties  to  a  deed  must 
be  ascertained  from  the  words  of  the  instrument;  but  this  rule 
is  subject  to  the  modification  that  surrounding  circumstances 
ma}'  be  taken  into  consideration,'  the  particular  situation  of 
the  parties,  and  the  state  of  the  thing  granted.'* 

Where  vagueness  or  uncertainty  may  seem  to  exist,  evidence 
aliunde  may  be  resorted  to;  and  if  with  the  aid  of  extrinsic 
facts  and  circumstances  ^  the  intent  of  the  parties  can  be  ascer- 
tained witli  reasonable  certainty,  the  conveyance  will  be  sus- 
tained.* On  the  other  hand,  where  the  language  employed  is 
so  uncertain  that  the  intention  of  the  parties  cannot  be  discov- 
ered, the  deed  is  void;  and  this  whether  the  uncertainty  has 
reference  to  the  person  of  the  grantee  or  the  description  of  the 
thino'  o^ranted. 

Questions  of  construction  arise  most  frequently  witii  respect 
to  the  property  conveyed  and  the  extent  and  duration  of  the 
estates  therein  created;  and  as  these  matters  are  made  the  sub- 
jects of  subsequent  chapters,  where  they  are  treated  in  detail, 
no  attempt  will  be  made  in  the  subsequent  paragrapiis  to  elu- 
cidate any  points  or  determine  any  questions  growing  out  of 
the  descriptions  of  lands  or  the  creation  of  estates. 

1  Cumberland,   etc.  Ass'n   v.    Ara-  Franc,  26  Cal.  88;  Dunn  v.  Englisli, 

iningo,   etc.  Church,    13  Phil.    (Pa.)  23  N.  J.  L.  126;  Abbott  v.  Abbott,  53 

171;  Lehndorf  v.  Cope,  122  111.  317.  Me.  356;  Pollard  v.  Maddox,  2b  Ala. 

-'Staton  V.  Mullis,    92  N.    C.    623;  325. 

Anderson  v.  Baughiuan,  7  Mich.  69.  *  jt  h^g  bge^  f,^] j  that,  in  constru- 

» Courts  must  give  a  common-sense  ing  the  language  of  a  deed,  the  court 
construction  to  grants,  and  will  con-  must  assume  that  the  parties  to  the 
sider  the  state  of  things  and  the  deed  stood  upon  the  ground  and  had 
considerations  in  riew  of  the  parties  all  the  lands  and  boundaries,  natural 
at  the  time  the  grant  is  made,  which  and  artificial,  as  well  as  lands  of  ad- 
move  them  to  its  execution  and  joining  owners,  in  full  view  at  the 
acceptance.  Louisville,  etc.  R.  R.  Co.  time,  Wendell  v.  Jackson,  8  Wend. 
V.  Koelle,  101  111.  455;  and  see  Treat  (N.  Y.)  183. 

V.   Strickland,  2   Me.  231;  Truett   v.  6  Peck  v.  Mallams,  10  N.   Y.  532; 

Adams,  66  Cal.  218.  Walch  v.  Ringer,  2  Ohio,  327;  Gano 

*Batavia    Mfg.     Co.     v.     Newton  v.  Aldridge,  27  Ind.  294;  Anderson 

Wagon  Co.  91   111.   230;  Hadden  v.  v.  Baughman,  7  Mich.  69. 
Shoutz,    15  111.  581;  Mulford    v.    Le 


352  CONVEYANCE. 

§  2.  Construction  in  favor  of  grantee.  It  will  sometimes 
happen  that,  by  reason  of  peculiar  circumstances  and  condi- 
tions which  practically  preclude  any  other  view,  a  deed  must 
be  construed  most  strongly  in  favor  of  one  of  the  parties  in 
respect  to  the  thing  granted  and  the  estate  conveyed,  and  the 
rule  is  that  in  such  cases  such  a  construction  shall  be  had  as 
is  most  favorable  to  the  grantee.^  But  such  construction  is 
the  last  one  to  which  courts  apply,  and  ought  never  to  be  re- 
sorted to  so  long  as  a  satisfactory  result  can  be  reached  by 
other  rules  ;^  and  is  not  applicable  to  any  case  but  one  of  strict 
equivocation,  where  the  words  used  will  bear  either  one  of  two 
or  more  interpretations  equally  well.'' 

The  rule  is  based  upon  the  principle  that  a  deed  should  never 
be  held  void  when  the  words  may  be  applied  to  any  intent  to 
make  it  good,  and  to  that  end  they  are  to  be  taken  most 
strongly  against  the  grantor;  for  he  should  not  be  allowed  to 
say  a  description  framed  b}'  himself  was  so  indefinite  that  no 
title  to  the  property  could  be  acquired.* 

The  rule  governing  controversies  between  grantor  and 
grantee,  by  which  the  language  of  a  conveyance  is  required  to 
be  taken  most  strongly  against  the  grantor,  has  no  application 
when  the  dispute  occurs  between  parties  claiming  under  the 
same  conveyance  and  who  are  each  entitled  to  the  benefit  of 
the  same  rule  of  construction.'^  Nor  is  it  applicable  to  a  deed 
with  statutory  and  express  covenants,  as  it  is  a  rule  of  equal 
force  that  all  statutes  in  derogation  of  the  common  law  must 
be  construed  strictly." 

§  3.  Ambiguities  and  inconsistencies.  The  proposition  is 
fundamental  that  the  construction  of  all  deeds  must  be  favor- 
able and  as  near  the  minds  and  intents  of  the  parties  as  the 
rules  of  law  will  admit,^  the  entire  instrument  being  duly  sur- 
veyed and  the  various  parts  so  adapted  and  construed  that  the 

1  People  V.   Storms,   97  N.  Y.  364;  scoleman  v.   Beach,  97  N.  Y.  545. 

Hager  v.  Spect,  52  Cal.  579;  Mills  v.  ^pinley  v.  Steele,  23  111.  56. 

Catlin,  23  Vt.  98 ;  Wiuslow  v.  Patten,  "  Fish    v.     Hubbard,     24      Wend. 

34  Me.   25;  Watson  v.    Boylston,  5  (N.  Y.)654;  Brookman  v.  Kurzman, 

Mass.  411.  94  N.   Y.  273;   Bent  v.   Rogers,   137 

2Flagg  V.  Eames,  40  Vt.  16.  Mass.    193;  Waterman  v.   Andrews, 

3  Albee  v.  Huntly,  50  Vt.  458.  14  R.  I.  589?  Bryan  v.  Bradley,  16 

4  People  V.  Storms,  97  N.  Y.  364.  Cond.  474. 


CONSTRUCTION    OF    DEKDS.  353 

whole,  if  possible,  may  stand.'  Where  the  description  of  the 
))arties  or  property  is  ambiguous,  or  where  there  is  incon- 
sistency in  the  several  particulars,  words,  if  necessar}--,  may  be 
supplied  by  intendment,  and  particular  clauses  and  provisions 
qualilicd,  transposed  or  rejected  in  order  to  give  elTect  to  a|)- 
parent  intention.-  AVhat  words  or  clauses  shall  bo  rejected  or 
qualified  in  case  of  uncertainty  is  fref|uently  determined  by 
giving  effect  to  those  parts  or  clauses  which  are  mos'  certain, 
and  to  particulars  in  respect  of  which  the  parties  would  bo 
least  likely  to  have  made  a  mistake.' 

It  is  an  old  rule  that,  in  the  construction  of  deeds,  the  ear- 
lier clauses  control  the  later  ones;  but  this  rule,  in  effect,  is 
practically  abrogated,  or  if  emplo^^ed  is  only  resorted  to  when 
reconcilement  becomes  impossible.  The  later  and  better  rule 
would  seem  to  be  that  inconsistencies  are  to  be  reconciled  if 
possible;''  and  while  the  former  rule  may  still  be  applied  where 
a  subsequent  clause  would  defeat  the  grant,  it  is  never  per- 
mitted to  prevail  where  there  is  room  for  construction.'^  If  it 
is  the  clear  intent  of  the  grantor  that  apparently  inconsistent 
provisions  of  a  deed  shall  all  stand,  such  limitations  upon  and 
interpretation  of  the  literal  signification  of  the  language  used 
will  be  imposed  as  will  give  effect,  if  possible,  to  all  of  its 
provisions.*^  On  the  other  hand,  where  the  intention  of  the 
parties  is  decisively  shown  from  one  clause,  the  intention  thus 
shown  will  control,  notwithstanding  ambiguities  and  incon- 
sistencies in  other  clauses.^ 

§  4.  The  premises.  Technically  the  premises  of  a  deed  is 
everything  which  precedes  the  hahoidavt,  and  includes  the 
most  material  and  operative  parts  of  the  instrument.  The  date, 
where  the  instrument  takes  the  form  of  an  indenture,  is  always 
placed  at  the  beginning  of  the  premises,  but  is  generally  re- 

'  Booth  V.   Mill  Co.  74  N.  Y.   21;  <  Waterman  v.  Andrews,  14  R.  I. 

Parker  v.    Nichols,    7  Pick.    (Mass.)  589. 

Ill;  Salisbury  V.  Andrews,  19  Pick.  <* Tucker    v.    Meeks,     3    Sweeney 

(Mass.)  250.  (N.  Y.),  736. 

2  Hathaway  v.  Power,  6  Hill  « Coleman  v.  Beach,  97  N.  Y.  545; 
(N.  Y.),  453;  Anderson  V.  Baughman,  Salisbury  v.  Andrews,  19  Pick. 
8  Mich.  60;  Riggin   v.  Love,  72  111.  (Mass.)  250. 

556.  7  Bent  v.  Rogers,  137  Mass.  192. 

3  Case  V.  Dexter,  106  N.  Y.  C48; 
Bent  V.  Rogers,  137  Ma^s.  192. 

23 


2o4:  CONVEYANCE. 

garded  as  the  least  material  part.  It  is  customary  to  insert  it, 
and  good  conveyancing  requires  that  it  should  be  stated;  yet, 
as  a  matter  of  law,  the  date  is  no  ])art  of  the  substance  of  the 
deed  and  is  not  necessary  to  its  operation  or  effect.*  Thougli 
the  expressed  date  of  a  deed  is  immaterial  to  its  operation  and 
effect,  and  may  under  ordinary  circumstances  be  contradicted 
and  explained,  yet,  when  taken  in  connection  with  conditions 
or  stipulations  annexed  to  the  grant,  it  may  become  important 
in  fixing  the  time  for  the  performance  of  any  act  by  grantor 
or  grantee,  and  in  such  case  cannot  be  varied  by  parol.-  The 
date  of  a  deed,  in  the  absence  of  other  proof,  is  presumed  to  be 
the  true  date  of  its  execution^  as  well  as  delivery;^  but  should 
the  instrument  be  without  date,  the  date  of  acknowledgment 
may  be  presumed  as  indicative  of  the  time  of  the  performance 
of  those  acts.^ 

The  premises  also  contain  the  parties,  the  consideration  re- 
citals, the  operative  words  of  conveyance,  and  the  description 
of  the  property  conveyed,  each  of  which  will  be  dul}'  consid- 
ered in  its  appropriate  place. 

The  operative  Avords  contained  in  the  premises  are  technic- 
ally called  words  of  purchase;  those  in  the  hahendum  words 
of  limitation.  The  former  serve  to  vest  an  estate  in  the 
grantee  by  their  own  operation;  the  latter  take  effect  only  by 
their  reference  to  and  connection  with  another  clause  of  the 
deed.^ 

§  5.  Recitals.  The  recitals  of  a  conveyance  being  unneces- 
sary to  its  validity,  either  at  law  or  in  equity,  are  never 
permitted  to  control  the  operation  of  the  deed  or  limit  its  con- 
struction,'    They  may  be  of  use  to  explain  a  doubt  of  the  in- 

1  Jackson  V.  Schoonmaker,  2  Johns,  has  been   customary  to  date    them. 

(N.  Y.)  234 ;  Meach  v.  Fowbr,  14  Ark.  4  Cruise,  216. 

29;Costigan  v.  Gould,  5Denio(N.  Y.),  -Joseph  v.  Biglow,  4  Cush.  (Mass.) 

290 ;  Blake  v.  Fish,  44  111.  302 ;  Thomp-  82. 

son  V.  Thompson,  9  Ind.  323.     It  is  3  Darst  v.  Bates,  51  111.  439;  Smith 

said  that  formerly  deeds  were  not  v.  Porter,  10  Gray  (Mass.),  66. 

dated,  for  the    reason    that  a  deed  ^  Hardin  v.  Crate,  78  111.  553. 

dated  before  the  period  of  prescrip-  ^  Gorman  v.   Stanton,  5  Mo.  App. 

tion,  which    was  constantly  chang-  585. 

ing.  was  supposed  not  to  be  plead-  «  4  Cruise,  229;  2  Hill.  Abridg.  362. 

able.     But  ever  since  Edward  II.  it  '  Huntington  v.   Havens,  5  Johns. 

Ch.  (N.  Y.)  23. 


CONSTECCTION    OF   DEEDS.  355 

tention  or  meaning  of  the  parties,  but  the  deed  must  have  the 
effect  which  its  operative  words  import  regardless  of  any  lan- 
guage inserted  merely  by  way  of  recital.'  The  most  that  can 
be  claimed  for  them  is  an  oj)eration  by  way  of  estoppel,  and 
in  this  particular  the}'  arc  generally  held  to  be  effectual.^ 

§  G.  The  parties.  Considerable  space  has  already  been  de- 
voted to  the  consideration  of  the  subject  of  the  parties  to  a 
conveyance  of  land,  and  as  to  who  are  and  who  are  not  capa- 
ble of  contracting,  as  well  as  the  manner  in  which  a  valid 
contract  may  be  made.  It  is  not  intended,  therefore,  to  repeat 
here  any  part  of  what  has  been  said  with  respect  to  the  capac- 
ity of  parties  or  methods  of  contracting,  but  to  point  out  the 
essentials  of  the  conveyance  with  respect  to  the  manner  in 
which  such  contracting  parties  should  be  distinguished  and 
identified. 

It  is  essential  to  the  validity  of  ever}'^  conveyance  that  it  be 
to  a  grantee  capable  of  taking  and  of  proper  identification; 
and  while  it  is  not  essential  that  the  grantee  shall  actually  be 
named,  yet  if  not  named  he  must  be  so  described  as  to  make 
him  capable  of  designation.'  There  is  jDerhaps  a  necessary 
uncertainty  in  writings,  involved  in  their  application,  both  as 
to  persons  and  things  described  therein,  and  parol  proof  is 
soroetimes  absolutely  indispensable  to  fix  the  identit}"^  of  the 
person  intended  or  the  thing  concerning  which  the  parties 
propose  to  contract;  yet  a  written  contract,  in  order  to  comply 
with  the  statute,  must  be  in  some  sense  self-sustaining.  *'  It 
would  be  mere  folly,"  as  was  said  in  one  case,  "  to  make  a 
conveyance  to  my  next-door  neighbor,  or  to  the  person  now 
sitting  at  the  table  with  me,  by  his  description  instead  of  by 
name,  and  the  law  could  hardly  be  expected  to  enforce  such  a 
conve3'ance."  The  description  of  the  parties,  therefore,  is 
equally  as  important  as  that  of  the  property,  and  should  be  of 
such  a  character  as  to  leave  no  doubt  as  to  the  person  or  per- 
sons intended. 

The  rules  relating  to  designation  and  capacity  are  funda- 

>  Moore  v.  Griffin,  23  Me.  350 ;  Clark       -  Stow  v.  Wise,  7  Conn.  214.     See 
V.   Post,   113  N.   Y.    17;  Walker  v.    Peck  v.  Hensley,  20  Tex.  673. 
Tucker,  70  111.  527.  » Simmons  v.  Spratt,  20  Fla.  495 ; 

Newton  v.  McKay,  29  Mich.  1. 


356  CONVEYANCE. 

mental,  and  hence  a  deed  to  the  heirs  of  a  living  person  named 
therein,  without  giving  the  names  of  the  heirs,  would  be  a 
nullity  and  pass  no  title  to  any  one ;  ^  so,  too,  of  a  deed  to  a  cor- 
poration which  has  no  legal  existence.-  But  courts,  in  the 
application  of  these  rules,  are  ever  inclined  to  a  liberal  inter- 
pretation; and  although  no  grantee  be  named,  if  the  grant  be 
made  for  a  specific  use,  a  trust  will  often  be  created  which  a 
court  of  equity  will  protect,  and,  if  necessary,  appoint  a  trustee 
and  compel  a  conveyance  to  him  of  the  legal  title.^ 

A  conveyance  to  John  Smith  &  Co.  would  at  law  have  the 
effect  to  vest  title  in  John  Smith  alone;  for  the  several  mem- 
bers of  a  firm  cannot  be  regarded,  in  the  view  of  a  court  of 
law,  as  holding  real  estate  as  tenants  in  common,  unless  it  be 
conveyed  to  them  as  such  b}'^  name.^  So,  also,  a  conveyance  to 
Thomas  Barnett  &  Bro.  has  been  held  to  vest  title  in  Thomas 
Barnett  only,  and  that  a  conveyance  from  him  would  give  to 
his  grantee  a  good  and  valid  title  to  the  entire  estate.'  It  is 
not  contended,  however,  that  such  a  deed  would  be  altogether 
void  in  respect  to  the  unnamed  members  of  the  partnership, 
but  simply  that  it  would  be  without  legal  operation  as  to 
them;  for  it  seems  that  while  a  firm  name  is  not  usually  con- 
sidered a  sufficient  designation  of  unnamed  parties  in  law,  it 
may  nev^ertheless  be  regarded  as  a  latent  ambiguity  which  may 
be  explained  by  parol  ;*^  while  in  equity  the  partner  thus  specif- 
ically named  would  be  treated  as  holding  the  legal  title  in  trust 
for  the  partnership.^ 

A  misnomer  will  not  ordinarily  defeat  a  grant;  and  a  deed 
to  a  party  by  a  wrong  baptismal  or  christian  name  may  yet 
suffice  to  vest  title  in  the  intended  grantee,^  extrinsic  evidence 

1  Hall  V.  Leonard,  1  Pick.  27 ;  Wins-  » Bailey  v.  Kilburn,  10  Met.  (Mass.) 
low   V.  Winslow,    53    Ind,  8.     In  a   176. 

similar  case  in  Tennessee,  however,  it  *  Arthur  v.  Webster,  22  Mo.  378 ; 

was  held  that    the    word    "heirs"  Winter  v.  Stock,  29  Cal.  407 ;  Gassett 

should  not  be  taken  in  its  technical  v.  Kent,  19  Ark,  607;  Moreau  v.  Saf- 

signification,  but  to  mean  "children,"  farans,  3  Sneed  (Tenn.),  595. 

and  that  the  deed  took  effect  as  a  5  Barnett  v.  Lachman,  13  Nev.  361. 

present  grant.  See  Grimes  v.  Orrand,  •>  Murry  v.    Blackledge,   71  N.   C. 

2  Heisk.  (Tenn.)  298.  493. 

2  Douthitt  V.  Stinson,  63  Mo.  268 ;  ^  Moreau  v.  Saffarans,  3  Sneed 
Hornbeck  v.   Westbrook,   9   Johns.  (Tenn.),  595. 

(N.  Y.)  73.  8  staak  v.  Sigelkow,  18  Wia.  334.  But 


C0N8TKUCTI0N   OF    DEEDS.  357 

being  admissible  to  explain  mistakes  or  prove  identity ;'  and 
if  upon  a  view  of  the  whole  instrument  the  grantee  is  pointed 
out,  the  grant  will  not  fail,  even  thougli  the  name  of  baptism 
is  not  given  at  all.-  Where  father  and  son  bear  the  same  name, 
unless  explained,  the  grant  will  be  taken  as  one  to  the  father.' 

The  grantor  in  a  tleed  is  usually  indifferent  as  to  who  the 
grantee  is,  where  he  receives  the  consideration  money  for  the 
land  conveyed,  and  is  usually  controlled  by  the  will  of  the  per- 
son with  whom  he  negotiates  and  from  whom  he  receives  the 
pay;  but  unless,  from  the  testimony,  it  appears  that  he  is  thus 
willing  to  be  controlled,  the  grantors  intention  is  the  proper 
subject  of  inquir}'  in  determining  who  the  grantee  is,  where 
the  deed  is  so  drawn  as  to  be  sufficient  to  convey  the  title  to 
either  one  of  two  parties.^ 

§  7.  Presumption  as  to  grantee  —  Persons  of  same  name. 
Notwithstanding  that  similarity  of  names  is  common,  and  that 
not  infrequently  the  same  name  is  borne  by  different  parties 
living  in  the  same  community,  it  is  rare  that  any  attempt  is 
made  to  assume  ownership  without  a  claim  of  right  simply  by 
reason  of  possessing  a  name  identical  with  that  of  a  record 
grantee.  In  the  cases  where  the  question  as  to  ownership  has 
arisen  the  contests  have  mainly  been  between  father  and  son, 
and  dej)endent  upon  peculiar  circumstances.  Where  two  per- 
sons bear  the  same  name  a  designation  of  character,  as  "  Sr.,'' 
"  Jr.,"  "  2d,"  etc.,  or  possibly  a  recital  of  the  place  of  residence, 
may  become  an  efficient  means  of  pointing  out  the  true  per- 
son meant;  yet,  as  a  matter  of  law,  the  terms  "Junior"  or 
"Senior"  have  no  particular  significance  or  controlling  effi- 
cacy. 

Where  a  father  and  son  have  the  same  name,  and  a  convey- 
ance of  land  is  made  without  designating  whether  to  the  father 
OP  the  son,  the  law  will  presume  that  the  father  was  intended 

see  Crawford   v.   Spencer,   8  Cush.  (N.  Y.),  170.     The  word  "Jr."  forms 

(Mass.)  418.  no  part  of  the  name  of  the  person  to 

1  Peabody  v.  Brown,  10  Gray  wl)ose  name  it  is  usually  affi.xed,  but 
(Mass.),  45.  is   merely  descriptive  of  the  person 

2  Newton  v.  McKay,  29  Mich.  1;  intended,  and  is  usually  adopted  to 
Scanlan  v.  Wright,  13  Pick.  (Mass.)  describe  the  son  where  father  and 
523.  son   both  have  the  same    christian 

3  Stevens  v.  West,  6  Jones  (N.  C),  name  as  well  as  family  name.     Id. 
49 ;  Padgett  v.  Lawrence,  10  Paige  *  Diener  v.  Diener,  5  Wis.  483. 


358  CONVEYANCE. 

for  the  grantee  in  the  absence  of  proof  to  the  contrary ; '  and  it 
devolves  on  the  son  or  the  party  claiming  under  him  to  intro- 
duce evidence  sullicient  prima  facie  to  overcome  or  rebut  this 
presumption.  Should  this  be  done,  however,  the  onuti  will  be 
shifted  to  the  party  claiming  under  the  father,  and  he  will  be 
bound  to  produce  proofs  sufficient  to  overcome  or  at  least 
equal  in  probative  force  tiie  case  of  the  adverse  party.-  Where 
a  deed  has  been  made  to  one  of  two  persons  of  the  same 
name  —  the  one  the  father  and  the  other  the  son  —  both  living 
together  and  occupying  the  premises  conveyed,  the  character 
and  circumstances  of  the  occupancy,  as  bearing  upon  the  ques- 
tion as  to  who  was  intended  to  take  the  grant,  are  proper  sub- 
jects for  consideration.-' 

§  8.  Consideration.  It  was  essential  to  the  validity  and 
operation  of  deeds  of  bargain  and  sale  under  the  statute  of 
uses  that  they  should  be  given  for  a  pecuniary  consideration, 
which  was  required  to  be  expressed  in  the  deed  or  proved  in- 
dependently of  it.  In  modern  conveyancing  the  principle  has 
to  a  great  extent  been  retained;  but  any  consideration  that  is 
valuable,  though  merely  nominal,  will  be  sufficient. 

Gratuitous  or  voluntary  conveyances  are  valid  and  effective 
as  between  the  parties  and  all  others  whose  rights  are  not  in- 
juriously affected  thereby;  but  whenever  a  deed  is  assailed  by 
one  who  lawfully  claims  a  right  or  interest  in  the  propert}' 
conveyed  adverse  to  the  grantee,  it  must,  to  insure  validity,  be 
supported  by  an  adequate  consideration.  "Good"  considera- 
tions, as  those  of  blood,  natural  affection,  etc.,  although  mer- 
itorious, are  not  usually  permitted  to  be  effective  in  such  cases ; 
and,  as  a  rule,  to  maintain  a  deed  against  the  attack  of  cred- 
itors, owners  of  prior  equities,  etc.,  it  must  be  founded  upon 
some  consideration  which  the  law  deems  valuable.  The  value 
consists  of  some  benefit  conferred  upon  the  party  by  whom 
the  promise  is  made  or  upon  a  third  party  at  his  request,  or 
some  detriment  sustained  at  the  instance  of  the  part}"-  prom- 
ising, by  the  party  in  whose  favor  the  promise  is  made. 

Money  is  always  considered  a  valuable  consideration;  but 

1  Graves  v.   Colwell,   90    111.    612;       SQraves  v.  Colwell,  90  111.  612. 
Padgett  V.  Lawrence,  10  Paige  (N.       a  Graves  v.  Colwell,  90  111.  612. 
Y.),  170;  Stevens  V.  West,  6  Jones,  L. 
(N.  C.)  49. 


COXSTKL'ClIuN    (>!•    DEKD3.  359 

marriage,'  agreements  for  support,'  past  illicit  cohabitation/ 
oxtinguislinient  of  antecedent  debts*  —  althougli  with  respect 
to  this  man}'^  autliorities  are  to  the  contrary  *  —  and  generally 
any  act  or  thing  which  conies  within  the  deJinition  first  given 
and  is  adequate  or  coininensurate  with  the  value  of  the  land 
conveyed,  will  be  sullicient  to  give  eli'ect  to  the  deed." 

The  subject  is  of  vital  importance  whenever  a  conveyance 
is  assailed  as  fraudulent,  and  its  different  pliases  will  be  con- 
sidered in  detail  when  we  come  to  treat  of  that  class  of  con- 
veyances. 

§  y.  The  habeiuluni.  The  office  of  the  habendum  in  a  deed 
is  to  limit  with  certainty  the  estate  previously  conveyed  by 
the  premises.  It  cannot  be  made  to  effect  the  conveyance  of 
anything  not  mentioned  in  the  premises;  nor  can  it  change 
the  character  of  the  estate  thereby  conveyed,  or  divest  an 
estate  already  vested;  and,  in  general,  is  void  if  repugnant  to 
the  estate  granted. 

But  where  no  estate  is  mentioned  in  the  granting  clause, 
then  the  hcibcndum  becomes  efficient  to  declare  the  intention 
of  the  parties,  and  will  rebut  any  implication  which  would 
otherwise  arise  from  the  omission  in  this  respect  in  the  pre- 
ceding clause.  So,  also,  where  the  granting  clause  in  a  deed 
merely  describes  the  property  and  does  not  define  the  nature 
or  character  of  the  estate  granted,  and  is  not  followed  by  lan- 
guage assuming  to  supply  what  is  thus  omitted,  it  results  by 
legal  implication  under  the  statute  relating  to  conveyances,  as 
enacted  in  most  of  the  states,  that  the  estate  is  a  fee;  but 
where  the  hahendum  describes  what  estate  is  conveyed,  it  does 
not  contradict  the  language  of  the  granting  clause,  but  simply 

1  Smith  V.  Allen,  5  Allen  (Mass.),  ford,  44  Cal,  835;  West  v.  Najlor,  93 

454;  Verplank   v.  Steiry.  12  Johns.  Ind.  431;  Safford  v.   Wade,  51   Ala. 

(N.   Y.)  536;  Whelan  v.   Whelan.  3  214. 

Cow.  (N.  Y.)537;  Ellinger  v.  Crowl,  '^  See  Johnson   v.  Graves,  27   Ark. 

17  Md.  361.  5."57;  Chance   v.  McWhorter,  26  Ga. 

-Hutchinson     v.     Hutchinson,    46  315;   Brown   v.   Vanlier,   7   Humph. 

Me.    154;    Exum  v.   Canty,  34  Miss.  (Tenn.)   249:  Wood   v.  Robinson,   22 

533;    Shontz    v.    Brown,  27   Pa.  St.  N.  Y.  564:  Mingus  v.  Coudit,  23   N. 

123.  J.  Eq.  313. 

»  Doe  V.  Horn,  1  Ind.  363.  6  Wood  v.  Beach,  7  Vt.  522 ;  Jack- 

♦Ruthv.  Ford,  9  Kan.  17;  Love  v.  son   v.  Leek,  19  Wend.  (N.  Y.)  339: 

Taylor,  26  Miss.   567;  Frey  v.   Clif-  Busey  v.  Reese,  38  Md.  264. 


300  CONVEYANCE. 

supplies  what  is  omitted  therefrom  and  removes  all  necessity 
for  resorting  to  implication  to  ascertain  the  intention  of  the 
parties.' 

So,  too,  while  no  person  can  take  a  ., resent  estate  under  a 
deed  unless  named  therein  as  a  party,  and  while  the  /i abend uvi 
can  never  introduce  one  who  is  a  stranger  to  the  premises  to 
take  as  grantee,-  yet,  where  the  grantee's  name  has  been  omit- 
ted in  the  premises,  if  the  hahendurn  be  to  Lim  by  name,  he 
takes  as  a  party  and  the  defect  is  cured.' 

§  10.  Testamentary  writings.  While  it  is  a  generally- 
conceded  rule  that  a  grantor  may  make  a  valid  present  con- 
veyance of  an  estate  to  commence  in  futuro,  yet  such  deeds 
must  be  carefully  distinguished  from  instruments  of  a  testa- 
mentary character  and  revocable  at  the  option  of  the  grantor. 
A  will  which  is  effective  as  a  conveyance  only  after  the  maker's 
death  is,  from  its  own  nature,  ambulatory  and  revocable  dur- 
ing his  life;  and  it  is  this  ambulatory  quality  which  forms  the 
chief  characteristic  of  wills;  for  though  a  disposition  by  deed 
may  postpone  the  possession  or  enjoyment,  or  even  the  vesting 
of  an  estate,  until  the  death  of  the  deposing  party,  yet  the 
postponement  in  such  case  is  produced  by  express  terms,  and 
does  not  result  from  the  nature  of  the  instrument. 

The  reported  cases  have  a  tendency  to  leave  this  subject 
somewhat  in  doubt,  the  more  advanced  cases  assuming  posi- 
tions greatly  in  derogation  of  common-law  rules,  and  opposed 
in  many  instances  to  decisions  arrived  at  upon  substantially 
the  same  facts.  The  volume  of  authority,  however,  sustains 
the  doctrine  that  an  instrument  in  form  a  deed  and  purport- 
ing to  convey  land,  but  providing  that  the  property  shall  re- 
main the  grantor's  during  life,  the  deed  taking  effect  only  at 
his  decease,  is  a  mere  devise,  revocable  at  will,  and  passes  no 
title.-* 

'  Riggin  V.  Love,  72  111.  553.  but  to  be  testamentary  in  its  char- 

-■  Blair  v.  Osborne,  84  N.  C.  417.  acter.     Cunningham    v.    Davis,     62 

•■*  Lawe  V.  Hyde,  39  Wis.  346.  Miss.  366.     So,  too,  a  conveyance  in 

•»  Bigley  v.   Souvey,  45  Mich.  370.  the  usual  form,  but  containing  the 

An  instrument  in  form  a  deed,  and  words  "to  commence  after  the  death 

providing  that  "  this  deed  not  to  take  of  both  of  said  grantors,"  and  "  it  is 

effect  until  after  my  death,"  and  di-  hereby   understood  and  agreed  be- 

recting  the  beneficiary  to  pay  the  tween  the  grantors  and  grantee  that 

maier's  debts,  held  not  to  be  a  deed,  the  grantee  shall  have  no  interest  in 


CONSTRUCTION    OF   DEEDS.  361 

"Where  a  deed  conveys  a  present  interest  in  land,  such  deed 
cannot  be  treated  as  of  a  testamentary  character  and  its  lim- 
itations revoked  by  the  grantor.'  Nor  will  the  fact  that  the 
right  of  possession  is  postponed  until  after  the  grantor's  de- 
cease affect  its  operation  as  an  absolute  grant.^ 

There  is  another  class  of  cases  which  hold  that,  inasmuch  as 
livery  of  seizin  has  been  abolished  and  deeds  of  feoffment 
have  fallen  into  disuse,  the  reason  for  the  rule  which  formerly 
prevented  the  creation  of  estates  in  futuro  without  some  in- 
termediate estate  to  support  them  has  ceased,  and  with  it  the 
rule  itself  has  practically  ceased  to  have  any  effect.'  Under 
these  decisions,  where  there  has  been  a  delivery  of  the  deed, 
notwithstanding  that  by  express  terras  it  is  to  have  no  effect 
until  after  the  grantor's  death,  it  will  still  be  considered  as  a 
valid  and  operative  conve^-ance,  the  fee  in  remainder  vesting 
on  delivery.  The  theory  upon  which  these  decisions  proceed 
is  that,  where  parties  have  clearly  expressed  their  intentions  by 
their  written  contract,  and  it  is  based  on  a  sufficient  considera- 
tion, and  no  rule  of  public  policy  has  been  contravened,  such 
agreement  should  be  enforced  unless  some  stern  and  inflexible 
rule  of  law  prevents.*  It  is  further  held  that  by  giving  effect 
to  such  conveyances  the  grantor  is  estopped  by  his  covenants, 
and  stands  seized  to  the  use  of  the  grantee  as  in  other  deeds 
of  bargain  and  sale;  that  such  a  course  simply  carries  into 

the  said  premises  as  long  as  the  mon  law,  livery  of  seizin  were  in- 
grantors  or  either  of  them  shall  dispensable  to  tlie  investiture  of  title 
live,"  held  not  to  create  a  present  in  the  grantee,  then  under  the  highly 
estate  to  commence  zu/«inro,  but  to  artificial  rules  that  then  prevailed 
be  in  tlio  nature  of  a  will  revocable  there  can  be  no  doubt  that  there 
at  the  grantor's  option.  Leaver  v.  should  be  not  only  a  particular  estate 
(Jauss,  G2  Iowa,  314.  to  sup[)ort  the  remainder,  but  livery 

'  Mattocks  V.  Brown,  103  Pa.  St.  IG.  of  seizin  to  the  tenant.  As  a  re- 
^A  conveyance  to  a  trustee,  the  mainder-man  was  not  entitled  to  pos- 
property  to  be  applied  to  the  grantor's  session,  and  tlie  fee  could  not  vest 
support  and  maintenance  during  life,  without  livery,  to  avoid  the  difficulty 
and  at  his  death  to  be  divided  among  by  a  fiction  the  livery  was  made  to 
certain  named  persons,  is  a  deed  and  the  tenant  holding  the  particular  es- 
not  a  will,  and  cannot  be  revoked,  tate ;  and  that  was  held  to  be  livery 
It  takes  eflfect  at  once.  McGuire  v.  of  seizin  to  the  remainder-man. 
Bank  of  Mobile.  43  Ala.  589.  ^  Shackelton  v.  Sebree,  8G  111.  616; 

3  If,  as  it  was  at  the  ancient  com-   Ferguson  v.  Mason,  60  Wis.  377. 


302  CONVEVANCE. 

effect  the  intention  of  the  parties,  working  injury  to  none  and 
infringing  no  rule  of  public  policy.' 

§  11.  Deed  cjiistriied  as  a  mortgage.  Tlie  authorities  all 
agree  in  declaring  that  a  deed  absolute  upon  its  face,  but  in- 
tended as  a  security  for  the  payment  of  mone\',  is  only  a  mort- 
gage. This  rule  is  allowed  to  prevail,  even  at  law,  where  the 
ilecd  is  accompanied  by  a  separate  contemporaneous  agree- 
ment in  writing  to  reconvcy  upon  the  payment  of  the  debt,' 
while  in  equity  parol  evidence  may  be  resorted  to  to  prove  the 
facts  which  established  the  true  nature  of  the  transaction.'  It 
is  to  be  observed,  however,  that  the  rule  of  equit}^  which  ad- 
mits parol  evidence  in  cases  of  this  kind  prevails  only  to  the 
extent  of  allowing  evidence  of  the  intention  of  the  parties  at 
the  time  of  the  execution  of  the  deed,  and  the  proof  must  estab- 
lish an  agreement  substantially  contemporaneous  therewith.* 
The  proof  of  such  agreement  cannot  rest  merely  on  the  subse- 
quent admissions  of  the  mortgagee;'^  nor  does  it  seem  that  a 
mutual  agreement  to  that  effect  is  enough  unless  it  be  in  writ- 
ing and  foi'mall}'^  executed.*^ 

iShackelton  v.  Sebree,  86  111.  61G.  agreement,  which  is  only  an  inde- 
It  has  been  held  that  where  a  deed  pendent  contract  by  the  vendee  to  re- 
contains  a  provision  that  it  is  not  to  convey  the  lands  to  the  vendor  on 
take  effect  and  operate  as  a  convey-  certain  conditions,  does  not  make 
ance  until  the  grantor's  decease,  and  the  deed  a  mortgage.  Horbach  v. 
not  then  if  the  grantee  does  not  sur-  Hill,  113  U.  S.  144. 
vive  him,  but  if  the  grantee  does  sur-  ^  jjaynor  v.  Lyons,  37  Cal.  452; 
vive  it  is  to  convey  the  premises  Maffitt  v.  Rynd,  69  Pa.  St.  380 ;  Lind- 
in  fee-simple,  with  words  appropriate  man  v.  Cummings,  57  111.  195;Mor- 
and  consistent  with  this  provision  in  ris  v.  Nixon,  1  How.  (U.  S.)  118; 
the  habendum  and  covenants,  it  will  Pugh  v.  Davis,  96  U.  S.  333;  Free- 
be  upheld  as  creating  a  feoffment  to  man  v.  "Wilson,  51  ^liss.  329;  Camp- 
commence  in  futuro,  and  will  give  bell  v.  Dearborn,  109  Mass.  130;  Per- 
the  estate  in  fee-simple  to  the  grantee  kins  v.  West,  55  Vt.  265. 
on  the  happening  of  the  contingency  *  Barrett  v.  Carter,  3  Lans.  (N.  Y.) 
named  —  the  execution  and  record  of  68;  Baugher  v.  Merryman,  32  Md. 
the  deed  operating  in  the  same  man-  185;  Sharp  v,  Smitlierman,  85  111. 
ner  as  a  livery  of  seizin  at  the  grant-  153;  Frink  v.  Adams,  36  N.  J.  E;i. 
or's  decease.  Abbott  v.  Holway,  73  485;  Reed  v.  Reed,  75  Me.  264. 
Me.  298.  spiummer  v.  Guthrie,  76  Pa.  St. 

2  Teal   V.  Walker,    111   U.    S.  243;  441. 

Lanahan  v.    Sears,    102  U.    S.    318;  6  Barrett    v.    Carter,    3  Lans.  (N. 

Haines  v.  Thompson,  70  Pa.  St.  434.  Y.)  68. 
But  on  a  sale  and  deed  of  lands  an 


CONSTRUCTION    OF    DEEDS.  303 

If  the  conveyance  is  in  fee,  with  a  covenant  of  warranty, 
and  there  is  no  defeasance,  either  in  the  conveyance  or  a  col- 
lateral paper,  parol  evidence  to  show  that  it  was  inte;ided  to 
secure  a  debt  and  to  operate  only  as  a  mortgage  must  be 
clear,  unequivocal  and  convincing,  or  the  j)resumption  that  the 
instrument  is  what  it  purports  to  be  must  prevail.'  In  consid- 
ering the  question  whether  an  instrument  in  the  form  of  a  deed 
is  not  actually  a  mortgage,  it  is  im])ortant  to  inquire  whether 
the  consideration  was  adequate  to  induce  a  sale;^  and  the  pre- 
sumption in  favor  of  the  conveyance  will  be  greatly  strength- 
ened where  it  appears  that  there  is  no  considerable  dispropor- 
tion between  the  price  paid  and  the  value  of  the  j)roperty.' 

The  true  test  in  the  determination  of  questions  of  this  char- 
acter seems  to  be  whether  the  conveyance  was  made  as  a  se- 
curity for  the  pa3nnent  of  money  or  the  performance  of  anv 
actor  condition;  and  if  the  transaction  resolves  itself  into  a 
security  it  is  in  equity  a  mortgage,  whatever  may  be  its  form.^ 

If  an  agreement  for  resale  is  made  contemporaneously  with 
the  conveyance,  coupled  with  express  conditions,  the  transac- 
tion may  be  either  a  mortgage  or  a  conditional  sale,  dependent 
on  the  intention  of  the  parties.  Usually  if  there  has  been  an 
extinguishment  of  a  pro-existing  debt,  or  where  no  debt  ex- 
isted or  continued  between  the  parties,  an  agreement  to  re- 
purchase within  a  given  time  constitutes  a  conditional  sale  and 
not  a  morto:a":e.'^ 

The  language  which  the  parties  have  seen  fit  to  employ  fur- 
nishes the  best  evidence,  as  a  rule,  as  to  the  real  character  of 
the  transaction;  but  if  the  language  is  equivocal  the  attending 
circumstances  may  be  resorted  to,  and  in  many  cases  they  will 

I  Cad  man   v.  Peter,   118  U.   S.  73;  Slowey   v.    McMurray,    37  Mo.  113; 

Hyatt  V.  Cochran.  37  Iowa,  309;  Sin-  Carr  v.  Carr,  52  N.    Y.   251;   Mont- 

clair  V.  Walker,  38  Iowa,  575;  Haynes  gomery  v.  Spect,  55  Cal.  552;  McNa- 

V.  Swann,  eileisk.  (Tenn.)5G0;  Helm  mara  v.  Culver,  22  Kan.  601;  Free- 

V.  Boyd,  124  111.  370.  man  v.  Wilson,  51  Miss.  329. 

2Russell  V.  Southard,  12  How.  (U.        ''Mitchell  v.  Wellnian.  SO  Ala.   Ifi; 

St)  139;  Helm  v.  Boyd,  124  III.  370.  Murray  v.  Riley,  140  Mass.  490;  Johii- 

3Coyle  V.  Davis,  116  U.  S.  lOS.  son  v.  Clark,  5  Ark.   340;  Henly  v. 

♦Sutphen  v.  Cushman,  35  111.  186;  Hotaling,  41  Cal.  22;  Price  v.  Karnes, 

Cooper    V.     Brock,    41     Mich.    488;  59  111.  276;  Wilson  v.  Carpenter,  62 

Hooper    v.    Bailey,    28    Miss.     328;  Ind.  495. 


364  CONVEYANCE. 

furnish  the  true  criterion  by  wliich  to  judge  whether  it  is  an 
absolute  conveyance,  a  conditional  sale  or  a  mortgage.^ 

§  12.  Relation.  The  doctrine  of  relation  is  applied  in  con- 
veyances of  land  to  equitable  titles  which  subsequently  mature, 
either  by  operation  of  law  or  act  of  the  parties,  into  legal  titles; 
and  where  several  acts  concur  to  make  a  conveyance,  estate  or 
other  thing,  the  original  act  will  be  preferred,  and  to  this  the 
other  acts  will  have  relation.  The  fiction  of  relation  is  that 
the  intermediate  hona  fide  alienee  of  the  incipient  interest  may 
claim  that  the  grant  inures  to  his  benefit  by  an  ex  jpost  facto 
operation.  In  this  way  he  receives  the  same  protection  at  law 
that  a  court  of  equity  could  afford  him.  Thus,  the  assignee 
of  a  certificate  of  purchase  of  school  land,  the  purchase  money 
being  all  paid,  conveyed  the  premises  by  quitclaim  deed;  a 
few  days  afterward  he  received  the  patent,  and  it  was  held 
that  the  legal  title  passed  to  his  grantee.  So,  where  a  deed  is 
made  in  pursuance  of  a  recorded  land  contract,  it  relates  back 
to  the  date  of  the  contract  and  conveys  the  title  as  it  stood  at 
the  time  the  contract  was  recorded.-  The  same  doctrine  also 
applies  to  grants  of  unlocated  land,  the  subsequent  location 
operating  by  relation  to  the  original  grant.'*  The  doctrine  of 
relation  is  a  fiction  of  law  adopted  by  the  courts  solely  for  the 
purpose  of  justice;  and,  where  several  proceedings  are  required 
to  perfect  a  conveyance  of  land,  it  is  only  applied  for  the  se- 
curity and  protection  of  persons  who  stand  in  some  privity 
with  the  party  that  initiated  the  proceedings  and  acquired  the 
equitable  claim  or  right  to  the  title.  It  does  not  affect  stran- 
gers not  connecting  themselves  with  the  equitable  claim  or 
right  by  any  valid  transfer  from  the  original  or  any  subsequent 
holder.^ 

§  13.  Lost  deeds.  A  lost  deed  can  only  be  established  by 
clear  and  satisfactory  proof.^     AVhere  the  deed  has  been  re- 

iSee  Pitts  v.    Cable,    44  111.    105;  2  \Velch    v.    Button,    79    111.    465; 

Cornell  v.  Hall,  22  Mich.  377 ;  Rock-  Snapp  v.  Pierce,  24  111.  156. 

well    V.    Humphrey,    57    Wis.    414;  3  jjequindre   v.   Williams,    31  Ind, 

Hughes  V.  Sheaff,  19  Iowa,  343 ;  Rich  444. 

V.   Doane,  35  Vt.  125;   Logwood  v.  *  Gibson  v.   Chouteau,  13  Wall.  92. 

Hussey,    60    Ala.    417;    Slowey    v.  » Lof tin  v.  Loftin,  96  N.  C.  94. 
McMurray,  27  Mo.  113. 


CONSTRUCTION    f>K    DKEDS.  3G5 

corded,  such  record  or  a  certified  copy  thereof  is  generally  tlic 
best  evidence  that  can  he  procured;*  while  in  case  of  the  loss 
or  destruction  of  both  deed  and  record,  an  abstract  of  title, 
made  in  the  regular  course  of  business,  has,  under  the  aid  of 
statutes,  been  frequently  held  to  be  competent  j^roof.-  It  has 
also  been  held,  in  such  latter  event,  that  a  copy  of  the  original 
deed  may  be  proved  by  the  person  who  made  the  copy.' 

'  The  record  of  a  deed   is  2>rima   original.     Burroughs  v.  De  Couts,  70 
facie  evidence  of  the  genuineness,    Cal.  361. 

due  execution  and  delivery   of   tlie       2xieinson  v.  Lamb,  117  111.  549. 

3  Fletcher  v.  Ilorne,  75  Ga.  134. 


366 


COJ^VEYANCE. 


CHAPTER  XIV 


THE  LAND  CONVEYED. 


1. 

General  principles. 

§14 

2. 

Ambiguous  descriptions. 

15. 

a. 

Inconsistent  descriptions. 

16 

4. 

General    and   special   descrip- 

tion. 

17. 

5. 

Specific  parts. 

6. 

Evidence  aliunde. 

18. 

7. 

Construction  by  the  parties. 

19 

8. 

Reference  to  plat. 

20. 

9. 

Survey  governs  plat. 

21 

10. 

Identification  of  boundary 

22 

lines. 

23 

11. 

Marked  lines. 

24 

12. 

Boundary  by  "parallel  lines." 

25 

13. 

Estoppel  iu  pais. 

26 

Statements  of  quantity. 
Streets  and  highways. 
Continued  —  Where  grantor  is 

without  title. 
Effect  of  grant    bounded    on 

highway. 
Exception  of  highway. 
Streams  and  water-ways. 
Lakes  and  ponds. 
Continued  — Artificial  waters. 
High-water  mark. 
Tidal  waters. 

Exception  from  riparian  grant. 
Mines  and  minerals. 
Operation  of  erroneous  deed. 

§  1.  General  principles.  The  object  of  a  description,  in  a 
deed  is  to  define  wiiat  the  parties  intend,  the  one  to  convey 
and  the  other  to  receive,  by  such  deed;  and  the  intention  of 
the  parties  is  to  be  deduced  from  the  instrument  of  convey- 
ance, as  in  the  case  of  any  other  contract.^  The  true  location 
of  the  premises  described  may  be  ascertained  from  the  refer- 
ences of  the  deed  —  the  monuments,  points  and  lines  expressly 
called  for,  which  are  fixed  and  well  known,  or  are  capable  of 
being  fixed  with  certainty,  the  courses  and  distances,  and  the 
whole  description  generally;  while  evidence  extrinsic  from  the 
deed  is  admissible  under  certain  circumstances,  and  may  be 
cmployed.- 

A  grant  must  describe  the  land  to  be  conveyed,  and  the  sub- 
ject granted  must  be  identified  by  the  description  given  of  it 
in  the  instrument  itself;  if  the  land  be  so  inaccurately  de- 
scribed as  to  render  its  identity  wholly  uncertain,  the  grant  is 
void.^    Where  deeds  or  other  writings  are  referred  to  as  parts 

'Long  V.    Wagoner,   47  Mo.    178;  Y.)471;  Child  v.  Ficket,  4  Me.  471 : 

Kimball  v.  Semple,  25  Cal.  440.  Green  v.  Jordan,  83  Ala.  220. 

•;  Fuller  V.  Carr,  33  N.  J.  L.   157;  3  Boardman  v.  Reed,  6  Pet.  (U.  S.) 

Kronenberger  v.  Hofifner,  44  Mo.  185 ;  328 ;  Campbell  v.  Johnson,  44  Mo.  247 ; 

Jackson  v.  Barringer,  15  Johns.  (N.  Dull  v.  Blum,  68  Tex.  299;  Williams 


TIIK    LAND    CONVEYKD.  307 

of  the  description  in  a  ilecd,  they  may  be  used  in  evidence  in 
aid  of  the  description;'  and  in  like  manner,  where  a  map  or 
plat  is  referred  to,  the  eifect  is  the  same  as  if  it  were  coj)ied 
into  the  deed.- 

A  grant  of  land  will  not  be  held  void  for  uncertainty  of  de- 
scription if  in  the  nature  of  things  it  seems  possible  to  obtain 
tostimon}'  by  means  of  which  the  particular  ]iarcel  granted 
may  be  determined;''  and  whei'c  the  dilTcrcnt  jiarts  of  a  de- 
scription are  repugnant  and  contradictory  to  each  other,  such 
parts  may  be  rejected  and  such  retained  as  will  leave  enough 
to  designate  plainly  and  clearly  the  land  intended  to  be  con- 
veyed.^ Where  the  parties  b}'"  their  subsequent  acts  have 
given  a  practical  construction  to  a  deed,  having  in  some  par- 
ticulars a  false  or  indefinite  description,  such  practical  con- 
struction by  the  parties  themselves  will  be  considered  by  courts 
in  construing  a  doubtful  clause.* 

The  location  of  land  as  gathered  from  the  description  is 
governed  (1)  b}-  natural  objects  or  boundaries,  such  as  rivers, 
lakes,  creeks,  mountains,  etc.;  (2)  by  artificial  marks,  such  as 
marked  trees,  lines,  stakes,  etc.;  and  (3)  by  course  and  dis- 
tance." The  true  location  of  land  is  ascertained  by  the  appli- 
cation of  all  or  any  of  these  rules  to  the  particular  case.  And 
when  they  lead  to  contrary  results  or  confusion,  that  rule  must 
be  adopted  which  is  most  consistent  with  the  intention    ap- 

V.  R.  R.  Co.   50  Wis.  71;  People  v.  Rep.    119;    Lovejoy    v.    Lovett,    124 

Klumpke,  41  Cal.  263.  Mass.   270.     The   rule  of  interpreta- 

'  Cleveland  V.  Simms,  69  Tex.  153;  tion  which  rejects  erroneous  par- 
Powers  v.  Jackson,  50  Cal.  429;  Wa-  ticulars  of  description,  where  what 
terman  v.  Andrews.  14  R.  I.  589.  is  left  sufliciently  identifies  the  sub- 

-  Noonan  v.  Braley,  2  Black  (U.  S.),  ject  of  the  grant,  is  adopted  in  aid 

499;  Burbach  V.  Schweinler,  56  Wis.  of  the  intention  of  the  grantor    as 

3S6;  Penry  v.  Richards,  52  Cal.  490.  gathered  from  tlie  instrument  itself, 

3  Blake   v.  Doherty,  5  Wheat.  (U.  read  in    the    light  of    the    circum- 

S.)  359;  Harkey  v.  Cain,  69  Tex.  146;  stances  in  which  it  was  written;  and 

Nixon  V.  Porter,  34  Miss.  097;  Purs-  does  not  apply  where  the  description 

ley  V.  Hayes,  22  Iowa,  11.  of  the  land  in  the  deed  which  it  is 

*  Jackson  v.  Sprague,  1  Paine  (C.  sought  to  reject  is  an  accurate  de- 

Ct.),  494;  Murry  v.  Hobson,  10  Colo,  scription  of  tlie  land  intended  by  the 

66;  Deal  v.  Cooper,  94  Mo.  62;  Wade  parties  to  be  conveyed.     Prentice  v. 

V.  Deray,  50  Cal.  370;  White  v.  Gay,  Stearns,  113  U.  S.  435. 
9  N.  H.  126.  «  Stafford  v.  King,  30  Tex.  257. 

'  Hamni  v.  San  Francisco,  17  Fed. 


368  CONVEYANCE. 

parent  upon  the  face  of  the  deed,  read  in  the  light  of  the  sur- 
roundinfx  facts  and  circumstances.^  It  is  a  fjeneral  rule  of 
construction  tliat  monuments  control  courses  and  distances, 
and  estimates  of  quantity  are  usually  subordinated  to  botli.- 
The  rule  that  fixed  monuments,  whether  natural  or  artificial, 
should  usually  be  given  preponderating  weight  is  obviously 
reasonable,  while  variance  between  actual  and  estimated  quan- 
tity is  not  usually  a  material  circumstance;  and  when  the 
quantity  is  mentioned  in  addition  to  a  description  of  the 
boundaries,  or  other  certain  designation  of  the  land,  without 
an  express  covenant  that  it  contains  that  quantity,  the  whole 
is  considered  as  mere  description.  The  quantity,  being  the 
least  certain  part  of  the  description,  must  yield  to  the  bound- 
aries or  lot-number  if  the}''  do  not  agree.' 

The  calls  of  a  deed,  whether  actual  or  artificial,  are  further 
divided  into  two  classes,  one  termed  descriptive  or  directory, 
and  the  other  special  and  locative.  The  former,  though  con- 
sisting of  rivers,  lakes,  etc.,  must  yield  to  the  special  locative 
calls,  for  the  reason  that  the  latter,  consisting  of  the  particu- 
lar objects  upon  the  lines  or  corners  of  the  land,  are  intended 
to  indicate  the  precise  boundary  of  the  land,  about  which  the 
locator  and  survej^or  should  be  and  are  presumed  to  be  very 
particular;  while  the  former  are  called  for  without  any  care 
for  exactness,  and  merel_y  intended  to  point  out  or  lead  a  per- 
son into  the  region  or  neighborhood  of  the  tract,  and  hence 
not  considered  as  entitled  to  much  credit  in  locating  the  par- 
ticular boundaries  of  the  land.  When  they  come  in  conflict 
with  special  locative  calls,  they  must  give  way  to  them.'* 

§  2.  Ambiguous  descriptions.  The  object  of  the  law  in  per- 
mittinga  construction  of  a  deed  is  to  ascertain  and  discoverthe 
intention  of  the  parties,  so  that  the  same,  if  possible,  may  have 
effect.  To  this  end  all  the  references  to  location  and  descrip- 
tion of  the  land  intended  to  be  conveyed  are  required  to  be 

'Stafford  v.  King,  30  Tex.  257;  3 Jackson  v.  Moore,  6  Cow.  (N.  Y.) 
Truett  V.Adams,  66  Cal.  218;  Ljman  705;  Ware  v.  Johnson,  66  Mo.  662; 
V.  Loomis,  5  N.  H.  408;  Smith  v.  Belden  v.  Seymour,  8  Conn.  19;  Dai- 
Dean,  15  Neb.  432.  ton  v.  Rust,  22  Tex.   133;  Clark  v. 

2  Baldwin  v.  Brown,  17  N.  Y.  359;  Scammon,  62  Me.  47. 

Watson  V.   Jones,   85  Pa.   St.    117;  « Wright  v.  Mabrj,  9  Yerg.  (Tenn.) 

Davis  V.  Rainsford,  17  Mass.  207.  55 ;  Stafford  v.  King,  80  Tex.  257. 


THE    LAND    CONVEYED.  369 

considered  in  order  to  arrive  at  the  true  meaning  and  inten- 
tion of  the  instrument;  and  where  ambiguit}'  can  only  be  dis- 
pelled b}'  the  rejection  or  substitution  of  words  or  phrases, 
such  words  may  be  rejected  or  supplied  by  intendment  in 
order  to  give  effect  to  the  intention.^ 

A  deed  will  not  be  ambiguous  sinijily  because  it  does  not 
show  on  its  face  the  limits  or  guaranty  of  the  estate  granted, 
provided  it  refers  to  certain  well-known  objects  by  which  such 
limits  may  be  readil}'^  ascertained.'-' 

The  general  rule  is  that  a  deed  must  be  upheld  if  possible, 
and  the  terms  and  phraseology  of  description  will  be  inter- 
preted to  that  end  if  this  can  reasonably  be  done  consistently 
with  the  principles  and  rules  of  law."  In  the  furtherance  of 
this  rule  courts  are  ever  inclined  to  exercise  a  wide  latitude  in 
construing  descriptions,  and  for  the  purpose  of  sustaining  a 
grant  will  receive  extrinsic  evidence  to  identify  and  establish 
the  object  of  the  call  in  a  deed;  and  in  all  cases  where  an 
apparent  uncertainty  is  created,  but  which  may  be  removed 
by  judicious  construction  and  resort  to  parol  proof,  such  proof 
may  be  resorted  to.'* 

1  Hathaway  V.  Power,  6  Hill  (N.Y.),  the  south  line  of  said  section  5,  on 
453.  A  call  in  a  deed  for  a  block  of  the  east  side  of  the  bottom  land  of 
a  certain  number  may  be  rejected  and  the  creek,  far  enough  up  the  bank  to 
another  block  substituted  wliere  the  raiae  a  nine-foot  head  to  a  mill 
error  is  apparent  from  the  whole  de-  standing  by  the  bridge  on  section  8; 
scription.  Murray  v.  Hobson,  10  Colo,  thence  up  the  bottom  land  one  hun- 
66.  So,  too,  where  a  call  in  a  deed  dred  rods,  to  include  all  the  bottom 
read  "  east  with,"  etc.,  and  it  was  land  on  both  sides  of  the  creek, 
manifest  that  this  meant  "  east  par-  within  the  above-mentioned  bounds, 
allel  with,"  etc.,  heM,  that  the  miss-  Held,  that  the  deed  conveyed  the  bot- 
ing  word  should  be  supplied  by  con-  tom  lands  that  would  be  flowed  by 
struction.  Deal  v.  Cooper,  94  Mo.  such  nine-foot  liead,  on  each  side  of 
62.  And  see  Edwards  v.  Bowden,  99  the  creek,  for  tlie  distance  of  one 
N.  C.  80;  "Wliite  v.  Gay,  9  N.  H.  126;  hundred  rods,  in  a  direct  line  fron\ 
Tliatcher  v.  Howland,  2  Met.  (Mass.)  the  place  of  beginning,  up  the  creek. 
41 :  Reamer  v.  Nesmitli,  34  Cal.  624;  to  a  [loint  wliere  the  water  woukl  be 
Chandler  v.  Green,  69  Me.  3oO;  Mey-  flowed,  on  the  same  side  of  the  creek, 
ers  V.  Ladd,  20  111.  415.  by  the    nine-foot  liead  of  water  at 

2  Simmons  v.  Jordan.  14  Wis.  523;  the  mill  referred  to.  And  see  Nixon 
and  see  Coats  v.  Taft.  12  AVis.  3S8,  v.  Parker,  34  Miss.  697;  Pursley  v, 
where  a  deed  described  tlie  land  con-  Hayes,  22  Iowa.  11  :  Dorr  v.  School 
veyed  as  a  part  of  the  east  lialf  of  District,  40  Ark.  237. 

the  southwest  quarter  of  section  5,       '  Edwards  v.  Bowden,  99  N.  C.  80. 
township  3,  range  8,  beginning  on       ^  As,  wliere   the  description    in    a 
21 


.370  CONVEYANCE. 

§  3.  Inconsistent  descriptions.  Following  the  rule  that  a 
deed  is  to  be  construed  according  to  the  intention  of  the  par- 
ties as  manifested  by  the  entire  instrument,  although  such  con- 
struction may  not  comport  with  the  language  of  a  particular 
part  of  it,^  it  has  been  held  that,  where  a  deed  contains  two 
descriptions  equally  explicit  and  unambiguous,  but  inconsist- 
ent with  each  other,  that  description  must  control  which  best 
expresses  the  intention  of  the  parties  as  manifested  by  the 
whole  instrument,  due  regard  being  had  to  the  attendant  facts 
and  circumstances.^  This  difficulty  occurs  most  frequently 
where,  in  the  anxiety  of  the  draughtsman  to  insure  absolute 
accuracy,  one  description  is,  as  it  were,  superadded  to  the 
other,  and  one  description  being  complete  and  sufficient  in 
itself,  while  the  other,  which  is  subordinate  or  superadded,  is 
incorrect.  In  such  event  the  incorrect  description,  or  feature 
or  circumstance  of  the  description,  may  be  rejected  as  surplus- 
age, and  the  complete  and  correct  description  allowed  to  stand 
alone.^ 

Words  of  general  description,  if  inconsistent  with  the  de- 
scription by  metes  and  bounds,  should  be  rejected;*  and,  gen- 
eralh",  whenever  several  particulars  are  mentioned,  those  found 
erroneous  may  be  disregarded,  and  the  unambiguous  and  cor- 
rect may  be  relied  on  to  determine  the  rights  of  the  parties.'^ 

deed  is  perfect,  but  there  is  a  mis-  in  the  county,  that  the  deed  was 
take  as  to  its  geographical  position,  properly  admitted  in  evidence,  in 
the  location  of  the  property  geo-  connection  with  other  evidence 
graphically  may  be  rejected  as  sur-  showing  the  situation  and  circum- 
plusage.  and  parol  evidence  received  stances  at  the  time,  as  tending  to 
to  identify  the  property  described  in  show  that  the  locus  in  quo  was  the 
the  deed.  Myers  v.  Ladd,  20  111.  415.  land  conveyed  by  the  deed.  Arm- 
So,  also,  where  lands  are  accurately  strong  v.  Colby,  47  Vt.  380. 
and  minutely  described  by  metes  and  i  Allen  v.  Holton,  20  Pick.  (Mass.) 
bounds,  courses  and  distances,  and  458;  White  v.  Gay,  9  N.  H.  126; 
other  indicia  of  location,  as  the  Richardson  v.  Palmer,  38  N.  H.  212. 
ownership  of  adjoining  lands,  etc.,  ^Dj-igcoH  v.  Green,  59  N.  H.  101; 
but  a  miatake  is  made  in  the  quarter-  Wade  v.  Deray,  50  Cal.  376;  Bene- 
section.  Thompson  v.  Jones,  4  Wis.  diet  v.  Gaylord,  11  Conn.  332. 
106.  A  deed  described  the  land  '  Doane  v.  Wilcutt,  82  Mass.  368; 
thereby  conveyed  as  being  in  Kruse  v.  Wilson.  79  111.  233 ;  Driscoll 
"  Linghton,"  in  the  county  of  Addi-  v.  Green,  59  N.  H.  101;  Raymond  v. 
sjn.  Held,  that  the  name  "  Lingh-  Coffey,  5  Oreg.  132. 
ton"  was  so  like  the  name  "Lin-  *  Raymond  v.  Coffey,  5  Oreg.  132; 
coin,"  a  town  in  said  county,  and  so  Benedict  v.  Gaylord,  11  Conn.  332. 
unlike  the  name  of  any  other  town  ^  Doane  v.  W^ilcutt,  82  Mass.  368. 


THE    LAND    CONVEYED  371 

Course  and  distance,  while  furnisliing  in  most  instances  re- 
liable data  from  which  to  ascertain  the  exact  dimensions  of  the 
land  granted,  must  nevertheless  be  set  aside  where  from  other 
parts  of  the  description  or  from  descriptions  superadded  a 
clearly  different  intent  is  manifested,'  or  where  the  calls  of 
the  courses  will  not  close.^ 

§  4.  General  and  special  description.  In  the  construction 
of  a  written  instrument  it  is  an  established  rule  that  a  par- 
ticular specification  will  exclude  things  not  specified,  and  con- 
trol matters  alluded  to  onl}'  in  general  terms.  This  rule  may 
be  applied  to  the  description  of  the  property  conveyed  as  well 
as  to  other  provisions  of  the  deed ;  and  where  lands  are  first 
described  generally,  and  afterwards  a  particular  description  is 
added,  the  latter  will  restrain  and  limit  the  general  descrip- 
tion.' 

Ordinarily  a  general  description,  unequivocal  in  terms  and 
capable  of  exact  identification,  will  be  effectual  for  the  pur- 
pose of  convening  all  the  land  to  which  it  applies;  ■*  yet  in  con- 
struing a  deed  the  real  intent  is  to  be  gathered  from  the  whole 
description,  particular  as  well  as  general,  and  where  there  is 
obscurity  or  uncertainty  all  of  the  particulars  in  the  descrip- 

So  where  one  of  the  calls  in  the  de-  seven  acres,  and  two  hundred   and 

scription  was  "  thence  northwesterly  fifty  acres  had   been  sold ;  but  the 

along  Moss  street,"  etc.,  which,  taken  courses  and  distances  did  not  corre- 

in  connection  with  other  calls,  was  spond  to  the  marks  on  the  ground, 

senseless  and  unmeaning,  but  which,  and  would  not  close  unless  several 

by  the  omission  of  the  word  "  north-  changes  were  made.     Held,  that  the 

westerly  "  and  adapting  the  line  to  descriptive  piirase  "  the  south  end," 

Moss  street,  answered   tiie   call  and  etc.,  governed.     Duncan  v.  Madara, 

made  a   complete  description,  lield,  106  Pa.  St.  562. 

that    the     word     "northwesterly"       *Thorndike   v.    Richards,    13    Me. 

should  be    rejected    as    surplusage.  430;  Barney  v.  Miller,  12  Iowa,  460; 

Kruse  v.  Wilson,  79  111.  233.  Case  v.  Dexter,  106  N.  Y.  548;  Doe 

1  Hampton  V.  Helms,  81  Mo.  631.  v.    Porter.    3    Ark.    18;    Smith     v. 

-  A  deed  convoying  land  by  courses  Strong,  14  Pick.  (Mass.)  128 ;  Sikes  v. 

and    distances  also    described   it  as  Shows,    74   Ala.    382:  Gano  v.    Ald- 

"one     hundred     and     ninety-seven  ridge,  27  Ind.  294;  Bell  v.  Sawyer, 

acres,  being  the  south  end  of  a  tract  32  N.  H.  72;  and  see  Bolt  v.  Burnell, 

surveyed  by  virtue  of  a  warrant  in  11  Mass.  167. 

the  name  of    H.  M.,  being  the  re-       <  Stanley  v.    Green,    12    Cal.    148; 

maining  part  of  said  tract  hitherto  Bower  v.  Earl,  18  Mich.  367;  Foss  v. 

unsold."    Tiie  H.  M.  tract  contained  Crisp,   20  Pick.  (Mass.)  121;  Jackson 

originally  four   hundred   and   forty-  v.  McConnell,  19  Wend.  (N.  Y.)  175. 


372  CONVEYANCE. 

tion  are  to  be  taken  into  account.  In  a  case  of  this  kind  the 
particuhirs  describing  the  location  of  the  land,  the  quantity,  its 
coinmonl^'-known  designation,  or  other  similar  incidents,  are  as 
much  a  part  of  the  description  of  the  subject  of  the  conveyance 
as  the  designation  by  lot-number  or  platted  title. ^  Where  the 
particulars  unmistakably  show  the  general  description  to  be 
false,  such  general  description,  or  so  much  of  it  as  is  clearly  re- 
l)Ugnant  to  the  grant,  may  be  rejected,  and,  under  the  familiar 
rule  that  where  the  description  is  ambiguous,  or  there  is  in- 
consistency in  the  several  particulars,  words,  if  necessary,  may 
be  supplied  by  intendment,  and  particular  clauses  and  provis- 
ions qualified  and  transposed,  while  such  words  as  may  rea- 
sonabh'  appear  to  have  been  omitted  by  inadvertence  may  be 
introduced.^  Thus,  where  a  general  description  which  de- 
scribes a  tract  of  land  by  its  platted  number  is  followed  by 
specification  .of  quantity  and  geographical  location,  all  de- 
scribing a  much  smaller  area,  and  showing  such  general 
description  to  be  mistaken  or  false,  it  is  fair  to  suppose  that 
the  words  "part  of"  or  words  of  similar  import  were  inad- 
vertently omitted  from  such  general  description.  It  is  true 
that  a  variance  between  the  actual  and  estimated  quantity  of 
land  is  not  usually  a  material  circumstance,  j'et  in  some  cases 
it  may  become  an  important  element  in  determining  the  in- 
tention of  the  parties  to  the  grant;  and  where  the  estimate  of 
quantity  in  the  particulars  and  the  actual  area  of  the  land 
covered  by  the  general  description  is  grossly  disproportionate, 
the  statement  of  quantity  becomes  ver^^  significant.  So,  too, 
natural  monuments,  as  Avater-ways,  or  other  physical  land- 
marks,  will  have   a   preponderating  weight  in   determining 

1  Case  V.    Dexter,  106  N.  Y.    548 ;  15  and  43,  containing  one  hundred 

and  see   Ousby  v.  Jones,  73  N.  Y.  and  forty  acres  each,  more  or  less, 

G21.  '  which   were  originally  included   in 

-Murray  v.  Hobson,    10   Colo.  66;  the  surveys  of  the  Boston  Purchase, 

Deal  V.  Cooper,  94   Mo.   62;  Case  v.  but  which,  it  had  been  ascertained 

Dexter,  106  N.  Y.   548;  Edwards  v.  previously  to  the  date  of  the  deed, 

Bowden,   99   N.   C,    80.     A   grantor  were  adjoining  thereto.     Held,  that 

conveyed  a  large  number  of  lots  of  the  words  of  the  deed  were  sufficient 

land,  described  as  lying  in  a  tract  of  to  pass   the  two    long  lots,  for  the 

wild   land,  called   the   Boston  Par-  words  of  general  description  are  cun- 

chase.     Among  these  lots  were  two  trolled  by  the  particular  description, 

described    as    long    lots,    numbered  Smith  v.  Strong,  14  Pick.  (Mass.)  128. 


Till-;    LAND    (JOXVEVED.  373 

questions  of  this  kind  and  in  ascertaining^  tl)e  amount  of  land 
actually  embraced  in  tlio  whole  description.  Nor  would  this 
be  a  case  of  cutting  down  an  interest  or  estate  once  clearly 
given  b}'  subsequent  indefinite  or  ambiguous  language;  for 
all  of  the  several  items  in  a  deed  of  this  character  are  to  be 
regarded  as  but  parts  of  one  single  description,  and  the  solo 
question  is,  What  land  is  embraced  therein? 

Neither  is  a  particular  description  in  a  deed  necessarily 
enlarged  by  a  succeeding  general  description  by  way  of  refer- 
ence to  and  adoption  of  the  description  of  a  former  convey- 
ance; and  this  rule  has  been  held  to  apply  even  where  the 
language  is  that  the  off^'^^itor  "intended  to  convev  the  same 
and  identical  land  conve3'ed  by  said  "  former  deed.'  While 
the  intent  of  the  parties,  so  far  as  such  intent  can  be  collected 
from  the  whole  instrument,  must  receive  effect  if  possible,  yet 
under  the  established  rules  of  construction  applying  to  convey- 
ances of  real  estate,  nothing  will  pass  b\'  a  deed  except  what  is 
described  therein,  whatever  the  intention  of  the  parties  may 
have  been.-  Hence,  Avhen  a  deed  contains  an  accurate  descrip- 
tion by  permanent  boundaries  capable  of  being  ascertained,  a 
general  reference  to  the  premises,  in  addition,  as  in  the  posses- 
sion of  the  grantor  or  grantee,  or  referring  to  descriptions  in 
former  deeds,  or  a  designation  b}^  name  or  locality,  will  not 
have  the  efifect  to  enlarge  the  grant  or  pass  title  to  lands  out- 
side of  the  boundaries  given. ^  Where  it  is  not  disputed  that 
the  boundaries  as  given  in  the  particular  description  are  defi- 
nite, unambiguous  and  certain,  and  describe  a  known  and  defi- 
nite parcel,  the  addition  of  a  general  statement  of  quantity  is 
immaterial;  and  but  little  weight  can  be  ascribed  to  such  state- 
ment when  followed  by  the  words  "more  or  less."  According 
to  settled  rules,  such  statement  cannot  be  held  to  atfect  the 
quantity  of  land  included  within  specified  boundaries  when 

1  Brunswick  Savings  Inst.  v.  Cross-  otherwise  tlie  same  is  bounded  or  re- 
man, 7G  Me.  577;  Thayer  v.  Finton,  puted  to  be  bounded,  being  the  man- 
108  N.  Y.  394.  sion  and  hind  thereto  belonging,"  it 

2  Coleman  v.  Manliattan  Beach  Co.  was  held  that  this  general  clause  did 
94  N.  Y.  229.  not  enlarge  the  grant,  although  alone 

'Jones   V.    Smith,    73   N.    Y.    205.  it  would  have  carried  the  mansion- 

Thus,  where  a  deed  of  land,  after  de-  house  and  land.    Tyler  v.  Hammond, 

scribing    it  by   metes    and    bounds,  11  Pick.  (Mass.)  193. 
contained    the   words  "or   however 


374  CONVEYANCE. 

thej  are  clearly  and  certainly  ascertainable.  'Nor  will  the  fact 
that  the  land  described  may  have  been  in  the  possession  of  the 
grantor,  or  was  convev^ed  to  him  by  a  particular  convej^ance, 
as  stated  in  the  general  description,  alter  the  case;  for  w^hile 
it  may  be  said  that  it  does  not  cover  ail  the  land  so  possessed 
by  or  conveyed  to  him,  it  is  a  sufficient  answer  to  say  that  the 
deed  does  not  profess  to,  but  simply  attempts  to,  give  addi- 
tional particulars  as  to  the  property  actually  described,  and 
which,  as  far  as  they  are  given,  are  correctly  stated. 

In  such  a  case,  by  confining  the  grant  to  the  land  included 
within  the  boundaries,  meaning  and  effect  is  given  to  all  the 
language  of  the  deed  except  possibly  that  relating  to  quan- 
tity, which  is  comparatively  immaterial;  and  the  absurdity  is 
avoided  of  supposing  that  parties  intended  to  convey  distinct 
and  separate  tracts  of  land  outside  of  the  boundaries  given  by 
using  inconclusive  and  general  language  following  a  particular 
description.  Where  by  the  express  language  of  the  descrip- 
tion the  parties  have  set  visible  and  known  limits  to  the  land 
intended  to  be  conveyed,  it  is  not  the  province  of  construction 
to  enlarge  this  description  and  embrace  within  it  other  lands 
not  mentioned.^ 

§  5.  Specific  parts.  Land  is  often  described  as  a  specific 
part  of  a  larger  and  more  minutely-described  tract;  and  where 
no  inconsistency  is  manifest  in  such  description,  and  such  spe- 
cific part  can  with  accuracy  be  identified  and  sequestrated 
from  such  larger  part,  the  description  will  be  efifectual  to  con- 
vey the  land  actually  embraced  wnthin  the  ascertained  bound- 
aries of  such  parcel.  In  descriptions  of  lands  which  refer  to 
the  government  surveys  such  description  by  specific  parts  is 
perhaps  as  accurate  as  any  that  could  possibh'-  be  employed,  as 
all  section  lines  are  based  on  true  meridians  and  standard  par- 
allels of  latitude,  with  accurate  measurements  of  areas.  The 
general  government  in  parting  with  title  makes  use  of  the 

1  Thayer  v.  Finton,  108  N.  Y.  394.  more  or  less,  being  the  same  prem- 

In  this  case  the  grantor  owned  an  ises "  conveyed  by  C.  to  the  grantor, 

eighty-eight-acre  farm   and  a  nine-  The  wood-lot  had  been  conveyed  to 

acre   wood-lot  adjoining  the   farm,  the  grantor  by  C.  as  well  as  the  farm. 

His    deed    definitely    described    the  Held,  that  the  wood-lot  did  not  pass 

boundaries  of  the  farm,  and    then  by  the  deed. 
added,  '•  containing  ninety-five  acres, 


THE    LAND   CONVEYED.  375 

terras  "half"  and  "quarter"  in  describing  the  lands  conveyed, 
without  further  description  by  metes  and  bounds;  and  these 
terms  continue  to  be  cniphjyed  in  subsequent  transfers  as  being 
the  best  that  can  be  employed  to  denote  clearness  in  descrip- 
tion and  accuracy  in  measurement. 

When  used  to  denote  the  legal  subdivisions  of  the  govern- 
ment surveys  the  employment  of  the  words  "half"  and  "quar- 
ter" can  produce  no  ambiguity  or  uncertainty;  and  generally, 
where  the  tract  out  of  which  the  specific  part  is  to  be  taken 
has  a  well-defined  boundary,  no  inconvenience  or  uncertainty 
should  result  from  the  use  of  any  term  expressing  geometrical 
proportion. 

The  word  "  half,"  when  used  in  describing  land,  should  be 
construed  as  meaning  "  half  "  in  quantity,  unless  the  context 
or  surrounding  facts  and  circumstances  show  a  contrary  in- 
tention.^ But  where  this  method  of  designation  is  used,  fol- 
lowed by  a  particuhir  description,  the  latter  will  restrain  and 
limit  the  general  description.  So,  also,  a  subsequent  deed  of  a 
specific  part  of  a  larger  tract  from  which  parcels  have  been 
sold  by  particular  description  should  be  construed  with  refer- 
ence to  the  particular  description  in  such  former  deeds.-' 

A  grant  of  a  specific  but  unlocated  part  of  a  larger  tract 
will  not  for  that  reason  be  held  void  for  uncertainty,  provided 
a  right  of  election  is  given  and  a  subsequent  location  made 
under  and  in  pursuance  of  such  right.'  It  would  seem,  how- 
ever, that  a  deed  purporting  to  describe  a  specific  tract  or 
parcel  of  land,  giving  the  number  of  acres  and  calling  it  part 
of  a  larger  tract,  but  which  fails  to  describe  the  tract  intended 
to  be  conveyed  or  any  tract,  does  not  convey  an  undivided 

1  Jones  V.  Pasliby,  62  Mich.  614.  and  an  election  of    lots   was  given 

-So  held  where  the  owner  of  a  tii-  to  the  grantees,  which   they  subse- 

angular  lot  conveyed  what  he  called  quently    made,    it     was    held    that 

the   "north   half"   of    it,    following  tiiough  by  the  terms  of  the  deed  the 

this  designation  by  a  particular  de-  premises  granted  were  undefined  and 

Bcription,  and  then  subsequently  con-  uncertain,  still  that  the  subsequent 

veyed  the  "south  half"  of  the  lot.  location,  in  pursuance  of  the  rigiit  of 

Grandy  v.  Casey,  93  Mo.  595.  election  given  by  the  deed,  rentlored 

3  Where  a  deed  granted  six  hun-  that  certain  and  definite  which  was 

dred  acres  of  land  to  be  surveyed  or  before  uncertain,  and  vested  a  legal 

taken  off  a  large  tract,  and  by  the  title  in  the  specific  premises  elected 

terms  of  an  instrument  referred  to  in  to  be  taken  by  the  grantees.     Corbin 

the  deed  the  tracts  were  to  be  divided  v.  Jackson,  14  Wend.  (N.  Y.)  619. 
into  lots  of  one  hundred  acres  each, 


3TG  CONVEYANCE. 

interest  in  the  larger  tract,  nor  make  the  grantee  tenant  in 
common  with  the  grantor  in  the  latter.' 

§  6.  Evideiu'e  aliunde.  "Without  in  any  way  impeaching 
the  genci'al  proposition  that  extrinsic  evidence  can  never  be 
received  to  contradict,  vary  or  control  a  written  instrument 
and  more  particularly  an  instrument  of  so  much  solemnity  as 
a  deed,  it  may  nevertheless  be  stated  that  whenever,  for  an}' 
cause  outside  of  a  deed,  there  arises  a  doubt  in  the  application 
of  the  descriptive  part  thereof,  evidence  dehors  the  writing 
may  be  resorted  to  for  the  purpose  of  identifying  the  subject 
of  the  instrument  and  the  understanding  or  intent  in  this  re- 
spect of  the  parties  thereto.  The  difficulty  in  the  application 
of  the  descriptive  portion  of  a  deed  to  external  objects  usuall}'' 
arises  from  what  is  called  a  latent  ambiguity,  which  has  its 
origin  in  parol  testimony,  and  must  necessarily  be  solved  in  the 
same  way.  Hence,  the  acts  and  admissions  of  the  parties, 
showing  a  construction  given  by  themselves,  maj^  and,  from 
the  necessities  of  the  case,  must,  often  be  shown  where  a  deed 
is  indefinite,  uncertain  or  ambiguous  in  the  description  of  the 
location,  area  or  boundaries  of  the  land  conveyed.^  So,  also, 
where  the  description  in  a  deed  appears  to  be  true  in  part  and 
false  in  part,  and  it  can  be  ascertained  from  references  in  the 
deed  to  other  contemporary  documents  and  extrinsic  attend- 
ing facts  which  part  is  false,  so  much  of  the  description  as  is 
false  must  be  rejected;  and  the  practical  construction  given  by 
the  parties  themselves  will  be  considered  in  construing  the 
doubtful  clause.^ 

But  where  the  description  is  complete  in  itself  the  rule  first 
mentioned  applies,  and  the  description  cannot  be  controlled 
by  the  declarations  of  the  parties,  or  by  proof  of  negotiations 
or  agreements  on  which  the  deed  was  executed ;  *  nor  will 
parol  evidence  of  any  kind  be  received  to  establish  a  different 
location  or  another  designation.' 

^Grogan  v.  Vache,  45  Cal.  610.  Rep.  119;  Homestead  Ass'n  v.  Lawns- 

2  Reed  v.  Proprietors  of  Locks,  8  dale,    19  Fed.    Rep.    291;    Truett   v. 

How.  (U.  S.)  274;  Deery  v.  Cray,  10  Adams,  66  Cal.  618. 

Wall.  (U.  S. )  263 ;  Fuller  v.  Carr,  33  *  Parker  v.  Kane,  22  How.  (U.  S.)  I ; 

N.  J.  L.  157;  Clark  v.  Powers.  45  111.  Benedict  v.  Gaylord,  11  Conn.  332. 

283;  Lovejny   v.    Lovett,    124   Mass.  5  Jennings   v.   Brizeadine,    44    Mo. 

270;  Laninan  v.  Crooker,  97Ind.  163.  332;  Fratt  v.  Woodward,  32  Cal.  219. 
*  Hamm  v.  San  Francisco,   17  Fed. 


THE    LAND    CONVEYED.  37Y 

g  7.  Construction  by  the  parties.  As  has  been  stated, 
where  the  parties  to  a  deed  have  by  their  subsequent  acts 
given  a  practical  construction  to  an  indefinite  or  doubtful  de- 
scription in  a  deed,  courts  will  usually  adopt  the  construction 
so  given;  •  but  where  the  language  of  the  deed  admits  of  only 
one  construction,  and  the  location  of  the  premises  intended  to 
be  conveyed  is  clearly  ascertained  by  a  sufTicient  description 
by  courses,  distances  or  monuments,  it  cannot  be  controlled  by 
any  different  exposition  derived  from  the  acts  of  the  parties. 
The  rule  is  applicable  only  where  the  language  is  equivocal 
and  the  location  is  made  doubtful,  either  by  the  insulhciency 
of  the  description  or  the  inconsistency  of  two  or  more  parts  of 
the  description.  In  such  latter  event  the  construction  put 
upon  the  deed  by  the  parties  in  locating  the  premises  may  be 
resorted  to  as  an  aid  in  ascertaining  their  intention.- 

§  8.  Reference  to  plat.  In  the  construction  of  a  deed  of 
conve3^ancc,  Avhere  the  land  conveyed  is  described  by  reference 
to  a  certain  map  or  plan,  the  courses,  distances  and  other  par- 
ticulars appearing  on  such  plat  are  to  be  as  much  regarded  as 
the  true  description  of  the  land  conveyed  as  they  would  be  if 
expressly  recited  in  the  deed.*  By  reference  the  plat  becomes 
in  fact  a  part  of  the  conveyance,  as  much  so  as  if  it  had  been 
copied  therein,^  and  the  purchaser  will  be  restricted  to  the 
boundaries  as  shown  thereby."' 

Words  of  reference  to  a  plat  employed  in  a  deed  are  usually, 
if  not  always,  words  of  description  only  and  not  of  quality. 
They  serve  to  connect  the  deed  with  the  plat,  so  that  by  ap- 
plying the  one  to  the  other  the  former  may  be  rendered  intel- 
ligible; but  while  they  give  effect  to  the  expressions  of  the 
<leed  they  do  not  limit  them.*^ 

§  9.  Survey  governs  plat.  The  remarks  and  conclusions  of 
tlx  foregoing  paragrapli  are  made  upon  the  presumption  that 

•  Hamm  v.  San  Francisco,  17  Fed.  Magoun  v.  Lapbam,  21  Pick.  (Mass.) 

Rep.   119;  Deery  v.    Cray,   10   Wall.  135;    Piper  v.    Connelly.  108  111.  646; 

(U.  S.)  263;  Fuller  V.  Carr,  33  N.  J.  L.  Burbach  v.  Scbweinler,  riQ  Wis.  386; 

157:   Stone  v.    Clark,   1  Met.  (Mass.)  Davidson  v.  Arleilge,  88  N.  C.  326. 
378;    Lovejoy   v.  Lovett,  124   Mass.       ^  Piper  v.    Connelly.    108  111.  646; 

270;  Truett  v.  Adams,  66  Cal.  618,  Hudson  v.  Irwin,  50  Cal.  450. 

2. Jackson   v.    Perrine.  35  N.  J.  L.        ^  jicCormick  v.  Huse,  78  111.  363; 

137;  Bond  v.  Fay,  12  Allen  (Mass.),  Davidson  v.  Arledge.  88  N.  C.  326. 
86.  b  Alton    V.    Illinois  Trans.    Co.   12 

3  Davis  V.  Rainsford,  17  Mass.  207;  111.  38. 


378  CONVEYANCE. 

the  plat  truly  represents  the  survey.  The  marks  and  lines 
on  the  ground  constitute  the  actual  survey  of  land,  while  the 
draft  or  projection  is  merely  evidence  of  such  survey;^  and 
where  any  question  arises  with  regard  to  the  plat  or  the  actual 
location  of  the  lots  as  parceled  by  the  survey,  the  marks,  stakes 
and  monuments  upon  the  land,  according  to  which  purchasers 
have  bought  and  taken  possession,  will  control  and  govern  the 
plat.-  The  actual  survey  rather  than  the  plan  fixes  the  location 
and  boundaries  of  the  lot.' 

§  10.  Identification  of  boundary  lines.  The  primary  rule 
in  the  construction  of  descriptions  in  convej^ances  of  lands  is 
that  whenever  fixed  and  known  monuments  as  well  as  courses 
and  distances  are  given  to  describe  the  same  line,  and  there 
is  a  discrepancy  between  the  two,  the  monuments  so  called 
for  must  prevail  over  the  courses  and  distances,*  upon  the 
theory  that  it  is  more  likely  that  there  would  be  a  mistake  or 
a  misunderstanding  about  the  course  or  the  distance  than  about 
the  monument.^  So,  also,  it  has  been  held  that  points  and 
lines  expressly  called  for,  which  are  fixed  and  well  known,  or 
are  capable  of  being  fixed  with  certainty,  should  govern  and 
control  the  courses  and  distances;®  and  further,  that  where 
there  are  no  express  calls  that  determine  a  line  with  certainty, 
evidence  aliunde  is  admissible  to  show  where  the  line  was  act- 
ually run  to  which  the  deed  refers  or  to  which  it  must  have 

1  Riddlesburg,  etc.  Coal  Co.  v.  or  if  other  natural  objects  be  called 
Rogers,  65  Pa.  St.  416 ;  Bean  v.  Bach-  for,  distance  must  be  lengthened  or 
elder,  78  Me.  184.  shortened  and  courses  varied  so  as  to 

2  The  rule  applied  to  a  case  where  conform  to  tliose  objects.  Mclver  v. 
the  evidence  did  not  show  that  a  lot  Walker,  9  Cranch  (U.  S.),  173. 
interpolated  upon  a  plat  had  ever  5  Keenan  v.  Cavanaugh,  44  Vt.  268. 
been  sold  by  the  proprietors,  or  that  As  a  general  rule,  in  the  location  of 
any  one  had  ever  taken  actual  pos-  lands  described  in  a  deed,  natural 
session  of  any  specific  part  of  the  objects  called  for  therein  —  such  as 
land  as  and  for  that  lot.  Marsh  v.  mountains,  lakes,  rivers,  rocks,  and 
Mitchell,  25  Wis.  706.  the  like  —  control    artificial  objects, 

3  Bean  v.  Bachelder,  78  Me.  184.         such  as  marked  lines,  marked  trees, 
■*  Kronen berger  v.  Hoffner,  44  Mo.    stakes,    etc.     Ayers  v.  Watson,    113 

185;  Keenan  v.   Cavanaugh,  44  Vt.  U.  S.  594. 

268;  Welder  v.  Hunt,  34  Tex.  44;  6  Kronenberger  v.  Hoffner,  44  Mo. 
West  V.  Shaw,  67  N.  C.  489:  Barclay  185;  Howell  v.  Merrill.  30  Midi.  283; 
V.  Howell.  6  Pet.  (U.S.)  408;  Morrow  Hoar  v.  Goulding,  116  Mass.  132; 
V.  Whitney,  95  U.  S.  551.  Thus,  if  Ayers  v.  Watson,  113  U.  S.  594.  Corn- 
marked  trees  or  corners  be  found  pare  Kellogg  v.  Mullen,  45  Mo.  571; 
conformably  to  the  calls  of  a  deed,  Walsh  v.  Hill,  38  Cal.  481. 


TIIK    LAND   CONVEYED.  379 

reference;  and  its  location  so  fixed  by  extrinsic  evidence  will 
control  the  courses  and  distances  named  in  the  deed.' 

If  no  monuments  are  mentioned  in  a  deed,  or  if  mentioned 
their  existence  and  location  are  not  proved,  courses  and  dis- 
tances will  govern;^  and  so  in  respect  to  lines,  for  it  is  only 
when  lines  called  for  in  a  deed  are  actually  marked  and  can 
be  identified  that  the}'  control  calls  for  course  and  distance; 
and  when  the  lines  called  for  are  of  doubtful  identity,  course 
and  distance  should  be  resorted  to  as  furnishing  the  best  evi- 
dence the  case  is  susceptible  of.'  But  while  the  rule  is  un- 
doubted that  monuments,  natural  or  artificial,  rather  than 
courses  and  distances,  control  in  the  construction  of  a  convey- 
ance, such  rule  will  not  be  enforced  when  the  instrument 
would  be  thereby  defeated,  and  when  the  rejection  of  a  call 
or  monument  would  reconcile  other  parts  of  the  description, 
and  leave  enough  to  identify  the  land.^  Such  rule,  when  ap- 
plied as  a  rule  of  construction,  must  be  considered  as  quali- 
fied by  the  further  rule  that  the  entire  description  must  be  read, 
and,  if  there  are  words  of  qualification  or  explanation,  they 
must  be  considered  in  order  to  arrive  at  the  intention  of  the 
parties.* 

It  is  often  stated,  as  a  general  proposition,  that  course  con- 
trols distance,  3'et  there  is  no  universal  rule  that  obliges  us  to 
prefer  one  to  the  other;  and  when  natural  and  ascertained  ob- 
jects are  wanting,  and  the  course  and  distance  cannot  be  rec- 
onciled, one  or  the  other  may  be  preferred  according  to 
circumstances." 

If  the  starting-point  of  the  boundary  line  cannot  be  identi- 
fied from  the  description  given  in  the  conveyance  it  is  void.^ 

"Where  lands  are  described  as  being  bounded  on  any  side  by 

1  Ki-onenberger  v.  Hoffner,  44  Mo.  ones  given  and  must  be  used.    Chino- 

185;    Hoar  v.    Goulding,    116  Mass.  weth  v.  Haskell,  3  Pet.  (U.  S.)  92. 

132 ;  Deery  v.  Cray,  10  Wall.  (U.  S.)  3  Browning  v.   Atkinson,    37  Tex. 

263.     Compare  Putnam  v.  Bond,  100  633. 

Mass.  58.  *  White  v.  Luning,  93  U.  S.  515. 

-  Bagley  v.  Morrill,  46  Vt.  94.     As  '  Higginbotham  v.  Stoddard,  16  N. 

where  a  grant  is  made  which  de-  Y.  Sup.  Ct.  1. 

scribes  the  land  by  natural  objects  ^  Preston    v.    Bowmar,    6    Wheat, 

not  distinguishable  from  others  of  (U.  S.)  580. 

the  same  kind,  course  and  distance,  "  Le  Franc  v.  Richmond,  5  Sawyer 

though  not  safe  guides,  are  the  only  (C.  Ct.),  601. 


380  CONVEYANCE. 

the  land  of  a  third  person,  the  land  conveyed  will  be  bounded 
by  the  true  boundary  line  between  it  and  the  land  of  such 
third  person,  and  not  by  the  line  that  was  understood  or  sup- 
posed to  exist  when  the  deed  was  given,  if  the  two  lines  are 
not  the  same;  ^  and  a  conveyance  by  a  boundary,  b}'  a  speci- 
fied course  and  distance,  "  more  or  less,"  from  a  given  point 
to  lands  of  a  third  person  named,  will  be  governed  by  the  true 
line  of  such  lands,  and  not  by  the  specified  distance.^ 

§  11.  Marked  lines.  Courts  have  ever  been  inclined  to  re- 
gard with  favor  the  lines  actually  run  in  all  cases  of  surve3^s, 
and  to  permit  such  lines,  when  ascertained,  to  control  other 
descriptions.^  So,  where  it  can  be  proved  that  a  line  was  act- 
ually run  and  marked  and  a  corner  made,  such  line  will  be 
taken  as  the  true  one,  although  the  deed  calls  for  a  natural 
object  not  reached  bj''  such  line.* 

But  while  marked  lines  are  usually  permitted  to  control  less 
definite  means  of  location,  it  is  only  when  the  line  can  be 
identified  on  the  ground  as  the  one  made  by  the  surveyor  that 
it  will  control  a  call  for  course  and  distance.^ 

§  12.  Boundary  hj  "parallel  lines."  No  term  is  more 
commonly  employed  in  the  calls  of  a  deed  than  that  which 
describes  a  course  as  running  "parallel"  to  some  other  line 
used  as  a  boundary.  Parallel  lines,  by  strict  mathematical 
definitions,  are  usually  to  be  regarded  as  straight  lines,  and  in 
the  employment  of  such  terms  in  deeds  and  other  instruments 
straight  lines  are  usually  contemplated.  But  in  common  speech 
about  boundaries,  or  in  a  geographical  sense,  the  words  are 
often  used  to  represent  lines  which  are  not  straight.  The  term 
is  used  for  want  of  a  better,  and  not  because  it  in  all  respects 

1  TJmbarger  v.  Chaboya,  49  Cat.  held,  that  the  authentic  line  would 
256.  be  a  straight  line  from  one  corner  to 

2  Howell  V.  Merrill,  30  Mich.  283.  the  other,  notwithstanding  it  did  not 

3  Where  a  deed  described  the  line  conform  to  the  course  and  distance 
in  dispute  as  running  from  a  corner  given  in  the  deed ;  and  that  the  fact 
on  a  given  course  a  given  number  of  of  the  existence  of  said  line  of 
rods  to  a  corner,  but  did  not  state  marked  trees  was  legitimate  as  tend- 
whether  the  corners  were  marked  on  ing  to  show  the  marked  corners  as 
the  land  or  not,  and  it  appeared  by  called  for  by  the  deed.  Clary  v. 
parol  that  they  were  in  fact  marked  McGlynn,  46  Vt.  347. 

by  means  of  monuments,  and   that       *  Baxter  v.  Wilson,  95  N.  C.  137. 
there  was  a  straight  line  of  marked       *  Fagan  v.  Stouer,  67  Tex.  286. 
trees  from  one  corner  to  the  other, 


THE    LAND    CONVEYED.  381 

fits  the  use  Lo  which  it  is  applied.  It  is  used  in  many  instances 
to  avoid  excessive  verbiage;  and  while  such  use  may  not  be 
itchnically  exact  it  is  not  obscure,  and  usually  there  is  no  dif- 
IJculty  in  understand ino-  what  is  meant.' 

If  a  boundary  line  is  described  in  a  deed  as  being  parallel 
with  the  general  course  of  a  stream  which  does  not  run  straight, 
but  meanders,  a  line  is  meant  which  runs  parallel  with  the 
stream  in  all  its  meanderings;  and  notwithstanding  that  a  call 
for  direction  is  given  as  "running  easterly  parallel,"  etc.,  the 
case  will  not  be  changed,  for  while  such  words  as  "easterly," 
when  used  alone  in  calls  from  one  monument  to  another,  would 
presume  a  straight  line,  yet  the  law  will  not  .so  declare  where, 
as  in  the  case  of  a  sinuous  water-course,  the  language  of  the 
deed  shows  that  a  difTerent  line  was  intended.' 

§  13.  Estoppel  ill  pais.  Questions  arising  out  of  disputed 
boundary  lines  are  frequently  settled  by  estoppels  in  pais  grow- 
ing out  of  the  acts  or  declarations  of  the  party  who  after- 
wards asserts  rights  in  respect  to  such  boundaries.  Thus, 
where  one  is  negotiating  for  the  purchase  of  a  piece  of  land 
adjoining  the  lands  of  another,  and  the  latter  points  out  to 
hira  a  line  which  he  says  is  the  division  line  between  the  two 
pieces,  he  will  be  estoi)ped  by  such  statements  from  showing 
the  line  to  be  further  over  on  the  same  tract,  where  the  party 
making  the  purchase  relies  or  acts  upon  these  representa- 
tions.^ It  is  essential,  however,  to  the  creation  of  an  estoppel 
of  this  character,  that  the  party  to  whom  the  representations 
are  made  should  rely  and  act  upon  them;  he  must  have  been 
induced  to  believe  in  the  existence  of  a  certain  state  of  facts, 
and  to  act  upon  that  belief  so  as  to  alter  his  condition.  In 
this  all  the  authorities  agree;  and  hence,  if  subsequent  cir- 
cumstances tend  to  disprove  any  such  belief,  or  to  show  that 
it  was  not  relied  upon,  the  party  making  the  representations 
will  not  be  estopped,  and  may  set  up  a  claim  inconsistent  with 
his  former  statements.* 

iSee  Fratt  v.  Woodward,  32  Cal.  *  As   where    the    purchaser    after- 

219;  Williams   v.  Jackson,  5   Johns,  wards  enters  into   agreements  with 

(N.  Y.)   306;  Winthrop   v.    Curtis,    3  such  coterminous  proprietor  to  have 

Me.  103.  a  line  run  with  a  view  to  establish- 

2  Fratt  V.  Woodward,  33  Cal.  319;  ing  where  it  ought  to  be.  Russell  v. 
Hicks  V.  Coleman,  25  Cal.  143.  Maloney,  39  Vt.  579. 

3  Russell  V.  Malouey,  39  Vt.  579. 


382  CONVKYANCE. 

§  14.  Statements  of  quantity.  Where  the  quantity  of  a 
tract  of  land  is  given  by  the  deed  as  well  as  the  metes  and 
bounds,  the  latter,  if  they  can  be  ascertained  with  certainty, 
will  control  the  location,  although  they  contain  less  than  the 
given  quantity  —  the  designation  of  quantity  never  being  per- 
mitted to  control  the  boundaries  where  they  are  clearly  indi- 
cated.^ But  where  there  is  doubt  as  to  the  true  description, 
such  designation  of  quantity  may  be  properly  considered.^ 

As  a  rule,  however,  a  recital  in  a  conveyance  of  land  that 
the  tract  contains  a  certain  number  of  acres  will  always,  unless 
there  is  an  express  covenant  as  to  quantity,  be  regarded  as 
part  of  the  description  merely,  and  will  be  rejected  if  incon- 
sistent with  the  actual  area  as  ascertained  by  known  monu- 
ments and  boundaries.  Such  recital  aids  but  does  not  control 
the  description  of  the  granted  premises.* 

§  15.  Streets  andliighways.  The  general  rule  is  now  well 
settled  that  a  grant  of  land  bounded  by  a  street  or  highway, 
whether  the  same  be  public  or  private,  carries  the  land  to  the 
middle  of  such  way;  and  such  is  the  established  presumption, 
governing  the  construction  of  a  contract  or  deed,  in  the  ab- 
sence of  controlling  words.''  This  presumption  has  in  a  num- 
ber of  instances  been  held  to  be  so  strong  that  it  is  not  rebutted 
even  where  the  calls  of  the  deed  describe  a  line  as  running 
from  a  fixed  point  a  certain  distance  to  the  highway  and 
thence  along  the  same,  and  the  distance,  upon  measurement, 
carries  the  line  only  to  the  side  of  the  highwa}';^  for  by  the 
well-known  rules  of  construction,  calling  for  localities,  meas- 
urements must  yield  to  monuments.  Where  lands  are  de- 
scribed as  bounded  on  lands  of  another  or  upon  roads,  ways, 


1  Ayers  v.  Watson,  113  U.  S,  594;  Me.  4G3;  Low  v.  Tibbetts,  73  Me.  92; 
Fuller  V.  Carr,  33  N.  J.  L.  157 ;  Camp-  Moody  v.  Palmer,  50  Cal.  37 ;  Paul 
bell  V.  Johnson,  44  Mo.  247.  v.   Carver,  26  Pa.  St.  225;  Dunham 

2  Field  V.  Columbet,  4  Sawyer  (C.  v.  Williams,  37  N.  Y.  251;  Bissell  v. 
Ct.),  523.  R.   R.   Co.   23  N.  Y.    64;   Taylor  v. 

^Fuller  V.   Carr,   33  N.  J.   L.   loT;  Armstrong,    24   Ark.   107;  Marsh   v. 

Campbell   v.   Johnson,   44  Mo.  247;  Burt,  34  Vt.  289;  Kimball  v.  Keno- 

Clark  V.  Scammon,  62  Me.  47.  sha,  4  Wis.  331. 

^Newhall  V.  Ireson,  SCush.  (Mass.)       5  Paul   v.  Carver,  26  Pa.   St.   225; 

595;  Motley  v.    Sargent,    119    Mass.  Motley    v.    Sargent,    110  Mass.    235; 

235;    Champlain    v.    Pendleton,    13  Oxton  v.  Groves,  68  Me.  371 ;  Gould 

Conn.  23;  Buckman  v.  Buckman,  12  v.  Eastern  R.  R.  Co.  142  Mass.  85. 


TUE    LAND    CONVEYED.  383 

waters,  etc.,  such  abuttals  arc  monuments;^  and  where  there 
is  a  conflict  between  courses  and  distances  on  the  one  hand  and 
monuments  on  the  other,  the  description  by  monuments  must 
control. 

Nor  does  it  seem  essential,  in  order  to  carry  a  grant  to  the 
center  of  a  highway,  that  the  land  should  even  be  described 
as  abutting  or  bounding  thereon;  and  whenever  land  is  sold 
bordering  on  a  highwa3%  the  mere  fact  that  it  is  not  so  de- 
scribed in  the  deed  will  not  vary  the  construction.  The 
grantee  will  still  take  the  fee  to  the  middle  of  the  highway, 
on  the  line  of  which  the  land  is  situated.- 

It  has  been  stated,  as  a  reason  for  the  rule,  that  the  adjoin- 
ing proprietors  are  presumed  to  have  originally  furnished  the 
land  in  equal  proportions  for  the  sole  purpose  of  a  highway;' 
and  hence  in  a  grant  of  the  adjacent  land  the  soil  to  the  cen- 
ter of  the  highway'  passes  as  a  parcel  of  the  land  and  not  as  an 
appurtenant.^  Ordinarily  the  ownership  of  the  soil  of  the 
street  or  road  is  of  no  practical  use  to  the  grantors  of  the  ad- 
jacent property ;  and  usually  there  is  no  purpose  to  be  served 
in  the  retention  by  them  of  narrow  strips  or  gores  of  land  be- 
tween the  land  conveyed  and  that  of  other  proprietors,  while 
for  many  purposes  such  ownership  is  of  special  importance  to 
the  purchasei-.'  It  is  presumed,  therefore,  that  the  grantor's 
land  in  a  street  ])asses  under  the  general  description  in  his 
deed  of  the  adjoming  land  with  which  it  is  connected  or  to 
which  it  belongs,  as  part  of  the  same  tract,  subject  to  the  pub- 
lic easement.'* 

'Wilder  v.  Davenport,  58  Vt.  643;  v.  Stevens,  87  N.  Y.  293;   Champlin 

Davis  V.    Kainsfoid,    17  Mass.    207;  v.    Pendleton,   13  Conn.  27.     Entire 

Boston    V.     Richardson,     13     Allen  street  in  such  case  passes  to  abutting 

(Mass.),  1.'32.  lots  under  the  general  description  in 

2  Gear  v.  Barnum,  37  Conn.  229;  deed  to  original  proprietor.  Taylor 
Stark  V.  Coffin,  105  Mass.  328;  Hawes-  v.  Armstrong,  24  Ark.  107. 

villa  V.  Lander,  8  Bush  (Ky.),  079.  «  Bissell  v.  R.  R.  Co.  23  N.  Y.  64. 

3  Dunham  v.  Wiiiianis,  37  N.  Y.  ^  And  so  it  has  been  held  that, 
251.  This  presumption  yields  when  where  the  owner  of  a  tract  of  land 
a  different  intention  is  clearly  mani-  laid  out  a  street  on  the  outer  edge 
fested,  or  when  the  evidence  shows  thereof,  and  then  conveyed  lots 
there  could  be  no  foundation  for  it ;  bounding  on  the  street,  his  grantees 
as,  where  the  grantor  at  the  time  took  the  fee  in  the  whole  width  of 
owned  no  part  of  the  street,  the  the  street.  Re  Robbins,  34  Minn.  99. 
same  being  laid  out  wholh'  on  the  •>  The  presumption  is  so  strong  that 
land  of  another.     Kings  Co.  Ins.  Co.  even    express    measurements    have 


384  CONVEYANCE. 

There  can  be  iio  doubt  that  the  grantor  of  land  abutting 
on  a  highway  may  reserve  the  same  from  bis  grant.  The  gen- 
eral presumption  in  every  case  is,  however,  that  he  did  not  in- 
tend to  retain  it;^  and  such  reservation  will  never  be  adjudged 
except  when  it  clearly  appears  from  the  language  employed 
that  such  reservation  was  intended.  What  language  shall  be 
sufficient  to  exhibit  such  intention  is  the  point  of  dilliculty 
upon  which  courts  have  differed.  The  description  of  the  prem- 
ises in  connection  with  other  parts  of  the  grant,  and  by  refer- 
ence to  the  situation  of  the  lands  and  the  condition  and  relation 
of  the  parties  to  the  lands  conveyed  and  to  other  lands  in  the 
vicinity,  may  further  be  resorted  to  as  an  aid  in  arriving  at  a 
solution  of  the  question;  and  these  will  often  have  a  very  im- 
portant bearing  upon  the  points  involved.'-  Taken  in  connec- 
tion with  surrounding  circumstances,  streets  will  sometimes  be 
excluded  from  the  operation  of  the  grant  even  without  express 
words  of  exception  or  reservation  —  the  language,  in  the  light  of 
the  facts,  being  construed  so  as  to  demonstrate  an  intention 
that  they  should  not  pass.'' 

§  1 6.  Continued  —  Where  grantor  is  witliout  title.  While 
the   rule    is  well   settled    that   general  terms   of   description 

been  held  not  to  defeat  it.  Thus,  the  3  The  New  York  cases  favor  the 
owner  of  land  laid  out  streets  and  construction  that  where  the  descrip- 
passage-ways,  divided  it  into  lots,  and  tion  commences  or  carries  the  land  to 
caused  a  plan  thereof  to  be  made.  He  the  s/c/e  of  the  road,  with  specified 
conveyed  these  lots  to  different  courses  and  distances,  the  soil  of  the 
grantees  by  deeds  bounding  on  the  street  is  by  necessary  implication  ex- 
streets  and  passage-ways,  and  (ie-  eluded;  that  the  points  thus  estab- 
scribing  the  lots  by  measurements  lished  are  controlling  monuments, 
which  excluded  them.  The  deeds  re-  and  that  all  lines  must  conform  to  the 
ferred  to  the  plan,  and  conveyed  a  points  thus  designated.  See  Jackson 
right,  as  appurtenant  to  the  lot,  to  v.  Hathaway,  15  Johns.  447;  English 
use  the  passage-ways  in  common  with  v.  Brennan,  60  N.  Y.  609.  The  same 
tiie  grantor  and  his  assigns.  Held,  construction  has  been  had  in  Massa- 
that  each  grantee  took  the  fee  to  the  chusetts.  See  Sibley  v.  Holden,  10 
center  of  the  street.  Gould  v.  East-  Pick.  249;  Smith  v.  Slocomb,  9  Gray, 
em  R.  R.  Co.  142  Mass.  85.  36;  and  see  Cottle  v.  Young,  59  Me. 

1  Bissel  V.  R.  R.  Co.  23  N,  Y.  64;  105.  Where  a  deed  calls  for  the  line 
Kimball  v.  Kenosha,  4  Wis.  331;  of  a  street  as  the  monument,  the  line 
Chatham  V.  Brainerd,  11  Conn.  60;  of  the  street  as  it  is  opened  and  built 
and  see  3  Kent's  Cum.  433 ;  2  Wash,  upon  will  be  held  to  be  the  line  in- 
Real  Prop.  6(55.  tended.    De  Veuy  v.  Gallagher,  20  N. 

-  This   is  particularly   true   in  the  J.  Eq  33. 
case  of  private  ways. 


THE    LAND   CONVEYED.  385 

in  a  (Iced,  like  "to,"  "  upon  "  or  "along  the  highway,"  raises 
u  presumption  that  the  parties  intended  the  conveyance  to  be  to 
the  middle  or  center  line,  and  that  such  operation  will  be  per- 
mitted for  the  deed  notwithstanding  that  portion  of  the  land 
embraced  in  the  limits  of  tiio  road  is  not  covered  by  the 
description  in  express  terms,  it  must  nevertheless  be  remem- 
bered that  the  rule  is  one  of  construction  only,  and  is  limited 
to  those  cases  where  the  grantor  owns  the  fee  of  the  highway. 
The  grantor  owning  the  fee,  the  law  presumes  he  intended  to 
convey  it  and  not  retain  a  narrow  and  ofttiraes  long  strip  of 
land,  which,  for  all  practical  purposes,  would  be  of  no  value  to 
him.  But  where  the  grantor  does  not  own  the  fee  of  the 
land  the  law  will  not  presume  that  he  intended  to  convey  that 
which  he  did  not  own;  and  a  deed  bounded  on  a  highwa}' 
would,  in  such  case,  be  satisfied  b}'  title  extending  to  the  side 
of  the  road.  The  grantee  would  have  all  the  land  described 
in  the  deed,  and  the  grantor  would  not  be  liable  for  a  breach 
of  his  covenants.' 

§  1  7.  Effect  of  grant  boiiiided  on  highway.  Where  land 
is  granted  bounded  upon  a  street  or  highway,  such  form  of 
expression  in  the  deed  is  not  merely  a  description,  but  an  im- 
plied covenant  that  there  is  such  a  street;  -  and  sp.ch  descriptive 
words,  particularly  if  the  deed  refers  to  a  plat,  are  not  to  be 
understood  as  merely  signifying  that  the  street  in  question  is 
co-extensive  with  the  lot  conveyed,  but  that  its  extent,  direc- 
tion and  termini  are  to  be  such  as  are  delineated  on  the  plat 
or  otherwise  indicated  b}'  the  deed.^  But  this  is  practicall}' 
the  full  effect  of  such  a  description.  The  description  of  a  street 
as  a  boundary  cannot  be  understood  to  be  an  assurance  or  im- 
plied covenant  that  it  has  been  constructed  and  put  into  con- 
dition for  present  use  as  a  passage-way;^  nor  will  it  impose 
upon  the  grantor  any  obligation  to  grade  and  construct  it  at 
his  own  expense.  The  most  that  can  be  said  is  that  it  amounts 
to  an  appropriation  or  setting  apart  of  a  portion  of  the  adja- 
cent land  to  that  usc^ 

1  Dunham  v.  Williams,  37  N.  Y.  3Ti,o,ijag  v.  Poolo,  7  Gray  (Mass.). 
251 ;  Church  v.  Stiles,  10  Atl.  Rep.  83.  Compare  Walker  v.  Worcester, 
674  (Vt.).  6  Gray  (Mass.),  548. 

2  Parker  v.  Smith.  17  Mass,  413;  *  Loring  v.  Otis,  7  Gray  (Mass.),  563. 
White  V.  Smith,  37  Mich.  291 ;  Trail-  ^  Hennessey  v.  R.  R.  Co.  101  Mass. 
sue  V.  Sell,  105  Pa.  St.  004.  540. 

25 


3SG  CONVEYANCE. 

§  18.  Exception  of  higliway.  Ordinarily  a  grant  of  land 
bounding  upon  a  highway  carries  the  estate  of  the  vendee  to 
the  center  line  thereof,  and  that  he  should  so  take  is  usually 
the  intention  of  the  parties.  Where  highways  and  roads  are 
excepted,  as  is  frequently  the  case,  the  deed  is  always  con- 
strued strongly  against  the  grantor;  ^  and  unless  it  is  unmistak- 
ably apparent  by  the  express  terras  of  the  exception,  or  the 
language  employed  in  describing  the  grant,  that  the  soil  of 
the  road-bed  was  intended,  such  exception  will  be  held  to 
apply  only  to  the  easement  of  the  public  incident  to  the  uses 
of  a  public  way,  while  the  grant  will  be  held  to  convey  the 
locus  to  the  center  of  the  road.-  This  is  particularly  true 
where  the  exception  describes  the  roads  as  ''  laid  out  over  said 
land;"  for  this  clearly  indicates  that  it  is  the  easement  of  pub- 
lic user,  and  not  the  land  itself,  that  is  in  fact  excepted.* 

§  1  y.  Streams  and  water-ways.  The  same  principle  which 
in  a  grant  of  land  bounded  upon  a  highway  carries  the  fee  to 
the  center  line  thereof  applies  with  equal  force  to  fresh- water 
streams;  and  when  such  stream  is  designated  as  the  boundary 
the  general  principle  is  that  there  must  be  a  reservation  or 
restriction,  expressed  or  necessarily  implied,  which  controls 
the  operation  of  the  general  presumption  and  makes  the  par- 
ticular grant  an  exception,  or  else  the  deed  passes  the  fee  to 
its  center.*  In  such  cases  the  general  rule  is  that  the  grantee 
takes  to  the  thread  of  the  stream  —  usque  ad  filum.  aqucBj 
and  this  is  usually  regarded  as  the  middle  line  between  the 
shores,  irrespective  of  the  depth  of  the  channel,  taking  it  in 
the  natural  and  ordinary  stage  of  water.'^ 

iWorthington  v.  Hylyer,  4  Mass.  ler,  04  III.  488;  Lunt  v.  Holland,  14 

196;  Wyman  V.  Farrar,  35  Me.  64.  Mass.   149;  Bradford  v.  Cressey,  45 

2Kuhn  V.  Farnsworth,  69  Me.  404;  Mc.  9. 
Moulton  V,  Trafton,  64  Me.  218 ;  Rich-        ^  Warren  v.  Thoniaston,  75  Me.  329. 

ardson  v.  Palmer,  38  N.  H.  212;  Ja-  The   theory   on    which   this    law    is 

inaica    Pond,    etc.    v.    Chandler,    9  based  seems  to  be  that,  as  the  por- 

Allen,  159;  Elliot  v.  Small,  35  Minn,  tion    of  the    stream    adjoining    the 

396.  grantee's  land   is  necessary  for  the 

^  Wellman  v.  Dickey,  78  Me.  ?9.  enjoyment  of  the  same,  and  as  such 

^Rice  V.  Monroe,  36  Mo.  309;  Luce  portion  of  the  stream  is  of  no  value 

V.  Carley,  24  Wend.  (N.  Y.)  451 ;  State  to  the  grantor,  it  must  be  presumed 

V.  Canterbury,  28  N.  H.  195;  Cox  v.  by  granting  the  land  to  gi-ant  also 

Friedley,   22  Pa.   St.    124;    Cliild  v.  the  portion  of  the  stream  adjoining 

Starr.  4  Hill  (N.  Y.).  369;  Seaman  v.  said  land:  and  the  law  can   fix  no 

Smith,  24  111.  521;  Braxon    v.  Bre.S3-  line  between  opposite  owners  except 


THE    LAND   CONVEYED.  387 

An  important  distinction  is  to  bo  observed,  however,  when 
the  channel  and  not  the  river  forms  the  designated  boundary. 
The  channel  is  regarded  as  the  deepest  part  of  the  river —  the 
navigable  part  —  and  is  something  entirely  distinct  and  differ- 
ent from  the  thread.  The  thread  is  tlie  center,  whereas  the 
channel  may  be  on  one  side  or  the  otlier;  and  when  the  grant 
bounds  the  land  by  the  channel,  the  thread  of  the  channel, 
and  not  the  river,  constitutes  the  boundary.' 

The  foregoing  remarks  apply  without  exception  to  all 
streams  unnavigable  in  fact,  and  generally  to  water-courses 
of  every  description;  but  in  a  very  few  states  the  statute  has 
in  some  measure  changed  the  common  law,  and  created  a  rule 
that  is  at  variance  with  the  generally-received  doctrine  in  this 
countr^^  In  those  states- the  general  principles  above  stated 
have  been  declared  inapplicable  to  the  great  inland  water- 
ways which  are  used  as  arteries  of  commerce  and  upon  which 
a  free  navigation  is  permitted,  and  grants  of  land  bounded  on 
them  extend  only  to  the  water's  edge.'' 

In  the  construction  of  grants  of  this  character  the  words 
"to,"  "on,"  "by,"  "along,"  "down"  and  other  words  of  like 
import  have  always  been  held  to  carry  title  to  the  thread  or 
center  of  the  stream.*  On  the  other  hand,  such  words  as  to, 
on  or  along  "  the  bank  "  have  been  held  to  indicate  a  restric- 
tion, and  to  exclude  the  idea  of  extending  the  grant  further 
than  the  water's  edge.' 

AVhere    lands  are  convoyed  bounding  upon  a  watercourse 

the  middle  of  tlie  stream.     Carter  v.  to  be  and  remain  public  highways, 

R.  R.  Co.  26  W.  Va.  644;    and   see  See  R.  R.  Co.  v.  Schurmeir,  7  Wall. 

Houck  V.  Yates,  82  111.  179;  Cobb  v.  (U.  S.)  272;  Forsyth  v.  Small,  7  Biss. 

Lavalle.  89  111.  331.  (C.  Ct.)  201;  State  v.   Milk,  11  Fed. 

1  Warren  v.  Thomaston,  75  Me.  329.  Rep.  389. 

2  The  states  in  which  a  i)ositive  ^  Pike  v.  Munroe,  36  Me.  309;  War- 
statute  has  chanj^ed  the  common  law  ner  v.  Southworth,  6  Conn.  470; 
are  Alabama,  Iowa,  North  Carolina,  Magnolia  v.  Marshall,  39  Miss.  109; 
Pennsylvania  and  Tennessee.  Thomas  v.  Hatch,  3  Sumner  (C.  Ct.), 

3  In  the  federal  courts  it  has  been  170;  Luce  v.  Carley,  24  Wend.  (N. 
also  held  that  proprietors  of  lands  Y.)  4ol;  Phinney  v.  Watts,  9  Gray 
bordering     upon     navigable     rivers  (Mass.),  209. 

under  title  derived  from  the  United  ^  Bradford   v.    Cressey,   45   Me.    9; 

States  hold  only  to  the  stream,  as  by  Child  v.  Starr,  4    Hill  (N.    Y.),    369; 

express   provisions   of   the    national  Rockwell  v.  Baldwin,  53  111.  19. 
statutes  such  rivers  shall  be  deemed 


388  CONVEYANCE. 

or  other  var3'ing  limit,  and  reference  is  also  made  to  a  plan, 
the  date  of  the  conveyance,  and  not  the  date  of  the  plan,  is  to 
be  considered  in  determining  the  question  of  the  true  boundary 
of  the  land  upon  the  water  liiait.^ 

A  grant  bounded  by  the  "  shore  "  of  a  stream  or  river  does 
not  receive  the  same  construction  as  a  similar  grant  where  the 
land  in  question  abuts  upon  the  sea  or  any  of  its  arms  or  estu- 
aries; for  upon  an  inland  river  there  is  no  shore  in  the  legal 
sense  of  that  term  — that  is,  a  margin  between  high  and  low 
tide."^  The  banks  of  a  river  belong  to  the  riparian  owner,  and 
he  possesses  the  absolute  fee  down  to  low-water  mark. 

But  while  the  proprietor  of  land  situated  upon  a  non-navi- 
gable stream  or  river  is  presumed  to  own  to  the  center  or 
thread  thereof,  and  a  conveyance  by  him  bounding  upon  such 
stream  is  presumed  to  carry  the  grant  to  such  center,  it  must 
be  remembered  that  the  principle  is  only  a  presumption,  for 
one  man  may  own  the  bed  of  such  a  stream  and  another  may 
own  the  banks;  and  where  in  a  deed  conveying  land  the  bound- 
ary is  limited  to  the  "bank"  of  the  stream  instead  of  bound- 
ing it  "on"  or  "along"  the  stream,  the  presumption,  it  has 
been  held,  must  fail.*  Such  a  description,  it  is  held,  necessarily 
excludes  the  stream  itself,  upon  the  familiar  principle  that 
every  express  grant  fixes  its  own  limits  and  determines  the 
rights  of  the  parties;  and  as  an  owner  may  sell  his  land  with- 
out the  privilege  of  the  stream,  he  will  be  presumed  to  do  so 
if  he  bounds  his  grant  by  the  bank.* 

§  20.  Lakes  and  ponds.  The  principles  which  have  been 
discussed  in  the  preceding  section  must  be  understood  as  ap- 
plying only  to  rivers,  streams  and  ponds  of  circumscribed 
area.  They  do  not  apply  to  grants  bounding  on  the  great  in- 
land lakes  or  other  large  bodies  of  standing  fresh  water.  The 
word  "stream"  has  a  well-defined  meaning,  wholly  inconsistent 

1  Jones  V.  Johnston,  18  How.  (U.  S.)       ^Bainbridge  v.    Sherlock,   29  Ind. 

150.     The  right  which  tlie  owner  of  364. 

a  water  lot  has  to  the  accretions  in       3  Rockwell  v,  Baldwin,  53  111.  19. 
front  of  it  depends  on  its  condition       *  Hatch  v,  Dwiglit,   17  Mass.  298 ; 

at  the  date  of  the  deed  which  con-  Child  v.  Starr,  4  Hill  (N.  Y.),  369 ; 

veyed  him  the  legal  title,  and  cannot  Bradford  v.  Cressey,  45  Me.  9;  and 

be  carried  back  by  relation  to  the  see  Daniels  v.  R.  R.  Co.  20  N.  H.  85 ; 

date  of  the  title  bond  under  which  McCuUoch  v.  Aten,  2  Ohio,  425. 
he  procured  his  deed.     Id. 


THE   LAND   CONVEYED.  389 

with  a  body  of  water  at  rest;  it  implies  motion  —a  flowing 
current  —  and  contemplates  a  comparatively  narrow  channel 
into  which  the  lines  of  riparian  owners  can  bo  extended  at 
right  angles  without  interference  or  confusion,  and  without 
serious  injustice  to  any  one.     It  is  but  natural,  therefore,  when 
such  streams  are  called  for  as  boundaries,  to  hold  that  the  real 
line  between  opposite  shore-owners  should  be  the  center  or 
thread.     But  when  this  rule  is  attempted  to  be  applied  to  lakes 
and  ponds,  numerous   practical  difficulties    are    encountered. 
They  have  no  current,  and,  being  more  or  less  circular,  it  is 
hardly  possible  to  run  the  boundary  lines  beyond  the  water's 
edge  so  as  to  define  the  rights  of  shore-owners  in  the  beds. 
There  may  be  instances  where,  from  the  contracted  area  op 
peculiar  character  of  the  configuration  of  a  pond,  a  grant  will 
be  presumed  to  include  it;^  but  ordinarily,  where  a  grant  is 
bounded  on  a  natural  lake  or  pond,  the  title  extends  only  to  low- 
water  mark,  or  to  that  line  where  the  water  usually  stands 
when  unaffected  by  any  disturbing  cause.-  The  riparian  rigiits 
of  the  adjoining  proprietor  are  all  preserved  intact,  and  any 
privilege  which  he  possesses  distinct  from  the  rest  of  the  pub- 
lic may  be  retained  by  him  or  conveyed  to  others;   but  his 
ownership  in  the  abutting  land  terminates  at  the  water's  edge.' 
The  distinction  between  a  stream  and  a  pond  or  lake  seems 
to  be,  as  above  indicated,  that  in  the  one  case  the  water  has  a 
natural  motion  or  current,  while  in  the  other  the  water  is  in 
its  natural  state,  subs  tan  tialh"^  at  rest.  And  this  is  so  independ- 
ent of  the  size  of  the  one  or  the  other.     The  fact  of  some  cur- 
rent in  a  body  of  water  is  not,  however,  of  itself  sufficient  in 
every  instance  to  make  it  a  stream;  nor  will  the  swelling  out 
of  a  stream  into  a  broad  sheet  necessarily  make  it  a  lake.* 

1  Ledyard  v.  Ten  Eyck,  36  Barb.  Smith,  24  III.  521 ;  Paine  v.  Woods* 
(N.  Y.)  102.  In  this  case  a  grant  108  Mass.  160;  Mariner  v.  Schulte,  13 
bordering  on  a  pond  five  miles  long  Wig.  775;  Wood  v.  Keliey,  30  Mo.  47. 
and  three-fourths  of  a  mile  wide,  3  Bradley  v.  Rice,  13  Me.  201; 
with  no  current  and  no  main  chan-  Waterman  v.  Johnson,  13  Pick. 
neJ,  and  not  generally  navigable,  was  (Mass.)  261;  Wheeler  v.  Spinola,  54 
held  to  carry  title  to  the  center.  N.  Y.  377;  Warren  v.  Chambers,  25 

■J  Lincoln  v.  Davis,  53  Mich.  375;  Ark.  120;  Nelson  v.  Buttertield,  21 
Wheeler  v.  Spinola,  54  N.  Y.  377;  Me.  229;  Primm  v.  Walker,  38  Mo.  99. 
Kobinson  v.  White,  42  Me.  209;  State  *A  bodj'  of  water  live  or  six  miles 
V.  Gilmanton,  9  N.  H.  461;  Jakeway  long,  and  in  some  places  a  mile  in 
V.    Barrett,   33  Vt.    316;  Seaman   v.    width,  whichisfed  by spring8,and  hua 


390  CONVEYANCE. 

§  21.  Continued — Artificial  waters.  While  the  rule  is 
general  that  land  bounded  upon  a  natural  lake  or  pond  extends 
only  to  the  water's  edge,  particularly  when  so  described,  a  diflFer- 
ent  rule  seems  to  prevail  in  respect  to  the  construction  of  grants 
bounding  lands  on  a  lake  or  pond  created  by  artificial  means. 
If  the  pond  is  caused  by  damming  back  the  waters  of  a  natural 
stream,  the  grant  extends  to  the  middle  of  the  stream  in  its 
natural  state,^  unless  the  pond  has  been  so  long  kept  as  to  be- 
come permanent,  and  to  have  acquired  another  well-defined 
boundary.- 

§  22.  Higli-water  mark.  Where  the  land  conveyed  is  de- 
scribed as  extending  to  or  bounded  by  ''high  water-mark," 
this  is  considered  an  explicit  boundary  —  a  fixed  and  perma- 
nent line  as  it  existed  at  the  time  of  the  acceptance  of  the  deed, 
and  does  not  follow  the  after-changes  of  the  water  line;  ^  and 
it  seems  that  a  grant  of  land  bounded  by  or  along  a  "  beach," 
ordinarily,  and  in  the  absence  of  any  language  in  other  clauses 
of  the  deed,  or  of  anything  in  the  situation  of  the  lands  granted, 
or  other  circumstances  authorizing  a  different  interpretation, 
conveys  title  to  high-water  mark.* 

Ordinarily  in  a  grant  of  lands  under  the  name  of  a  "beach" 
or  a  boundary  of  lands  upon  or  by  or  along  a  "  beach,"  the 
word  would  be  held  synonymous  with  the  shore  or  strand,  and 
as  having  reference  to  and  including  only  the  lands  w^ashed 
by  the  sea,  and  between  high-water  mark  and  low-water  mark. 
"  In  the  case  of  a  boundary,"  observes  Allen,  J.,  "  it  would  be 
necessary  so  to  restrict  the  meaning  of  the  word  in  order  to 
have  a  certain  and  definite  limit  to  the  lands  granted.  If  held 
to  mean  the  sandy  land  or  flats  between  the  upland  and  the 
shore,  which  is  frequentl}''  formed  by  a  change  of  the  shore 
line,  and  is  not  unfrequeutly  called  a  '  beach,'  it  would  be  quite 
too  uncertain  and  indefinite  to  constitute  a  line  bounding  lands 

no  connection  with  a  river  or  other  H.  463;  Lowell  v.  Robinson,  16  Me. 

stream  except  by  a  slough,  which  is  360;  Fletcher  v.   Phelps,  28  Vt.  257; 

dry  during  the  summer,  and  the  body  and  see  Ang.  Waters,  §  44. 

of  water  in  its  natural  state  has  no       2  Waterman  v.  Johnson,  13  Pick. 

current,  is  a  lake  and  not  a  stream  (Mass.)  265. 

of    water.     Trustees    of  Schools    v.       -  Cook  v.  McClure,  58  N.  Y.  437. 

SchroU,  120  111.  509.  *  Trustees  of  East  Hampton  v.  Kirk, 

1  Commissioners  v.  People,  5  Wend.  68  N.  Y.  459. 
(N.  Y.)  447;  State  v.  Gilmanton,  9  N. 


THE    LAND    CONVEYED.  391 

granted.'"  '  It  may  sometimes  happen,  however,  that  the  situa- 
tion of  the  lands  granted  or  other  circumstances  may  authorize 
a  difTerent  interpretation,  and  the  word  "  beach  "  may  be  taken 
to  mean  the  sandy  ))hiin  or  Ihit  which  lies  between  the  upkind 
and  the  actual  shore  line;  and  this  view  has  been  adopted  in 
some  cases  where  a  substitution  of  the  word  "flat"  has  been 
made  for  "shore  "  in  order  to  give  effect  to  the  manifest  inten- 
tion of  the  parLics.- 

§  213.  Tidal  waters.  By  the  rules  of  the  common  law  on!}'- 
those  waters  where  the  tide  ebbs  and  flows  are  deemed  navi- 
gable in  law,  notwithstanding  they  may  be  so  in  fact;  and  it  is 
to  the  influence  of  this  rule  that  the  general  doctrine  of  ripa- 
rian titles  on  non-navigable  water-courses  owes  its  origin  and 
continued  existence.  Grants  of  land  bounded  on  tidal  or  navi- 
gable waters  are  deemed  to  extend  only  to  high-water  mark,' 
which  is  the  line  defined  by  the  usual  high  tide,^  while  the 
title  to  the  strip  of  land  which  lies  between  high  and  low- 
water  mark  remains  in  the  government  for  the  use  of  the 
public' 

§  24.  Exception  from  riparian  grant.  No  question  can 
ordinarily  arise  with  respect  to  the  ultimate  line  of  riparian 
ownership  along  the  high  seas  or  great  inland  lakes,  as  the 
universally  conceded  rule  makes  it  extend  only  to  high-water 
mark,  whether  abutting  upon  tidal  waters,  an  inland  sea  or  the 
great  lakes,  while  the  title  to  all  lands  beyond  high-water  mark 

1  Trustees  of  East  Hampton  v.  Kirk,  it  would  have  no  definite  limit  on  ihe 
68  N.  Y.  459.  sea-board.     Neither    can    it  include 

2  In  Storer  v.  Freeman,  6  Mass.  435,  any  part  of  the  land,  for  the  same 
Chief  Justice  Parsons  in  interpreting  reason."  The  definition  of  the  shore 
a  deed  substituted  the  word  "fiats"  is  an  accurate  definition  of  a  beach, 
for  "  shore  "  in  the  description  to  give  having  respect  to  the  nature  and  sit- 
effect  to  the  intent  of  the  parties,  and  nation  of  both.  Both  words  denote 
held  that  the  land  conveyed  extended  land  washed  by  the  sea.  See  Little- 
to  the  "fiats,"  but  did  not  include  any  field  v.  Littlefield,  28  Me.  180:  Phillip 
part  of  them.     The  reasons  given  by  v.  Riiodes,  7  Met.  (Mass.)  322. 

the  chief  justice  in  this  ease  for  re-  '  Adams    v.    Pease,   2   Conn.    481 ; 

stricting  "shore"  to  the  ground  be-  Canal  Com'rs  v.  People,  5  Wend.  (N. 

tween  ordinary  high-water  marli  and  Y.)423;  Haight  v.  Ivookuk,  4  Iowa, 

low-water    mark    are  equally  appli-  199;  Slayhew    v.    Norton,    IT    Pick, 

cable  to  a  boundary  upon  or  by  or  (Mass.)  357. 

along  a  beach,     lie  says:  "  It  cannot  ^  Seaman  v.  Smith,  24  111.  521. 

be  considered  .18  including  any  ground  ^  Sea,i,..j,i    y      Smith.    24    III.    521; 

always  covered  by  the  sea;  for  then  Chapman  v.  Kimball,  9  Conn.  38. 


392  CONVEYANCE. 

or  under  water  is  vested  in  the  state.  But  with  respect  to  the 
"shore,"  and  the  extent  of  proprietorship  therein,  serious  and 
complicated  questions  will  frequently  arise  out  of  the  language 
employed  by  the  parties  in  describing  tlie  subject-matter  of 
the  grant. 

It  cannot  be  doubted  that  a  riparian  owner,  conveying 
lands  adjacent  to  navigable  waters,  may  so  limit  his  grant  as 
to  reserve  to  himself  not  only  his  riparian  privileges  in  the 
water,  but  also  subsequent  accretions  to  the  soil  formed  by  the 
operation  of  natural  causes.^  This,  it  is  said,  follows  neces- 
sarily from  the  absolute  right  which  the  owner  has  to  impose 
such  terras  and  conditions  upon  his  grants  as  he  may  deem 
necessary  or  expedient.  A  reservation  or  exception  of  this 
character  may  result  from  the  terms  used  without  an  ex^^ress 
declaration  of  intention  —  as  where  a  line  is  extended  to  the 
"shore"  or  "beach,"  and  then  projected  in  a  direct  course  to 
some  other  point,  not  following  the  natural  sinuosities  of  the 
shore  or  water-front,  the  land  so  described  forming  a  mathe- 
matical parallelogram  or  other  plane  figure  distinctly  opposed 
to  the  theory  of  a  diversion  to  accommodate  the  irregularities 
of  a  varving  line.- 

§  25.  Mines  and  minerals.  As  has  been  shown,  an  estate 
of  inheritance  in  mines  may  be  conveyed  as  distinct  from  the 
fee  of  the  land,  w^hich  may  remain  in  the  vendor  or  another. 
Such  au  estate  is  not  inconsistent  with  the  general  title  to  the 
lands  in  which  the  mines  are  situated  remaining  in  the  vendor. 
When  not  thus  severed  from  the  general  title  of  the  lands  in 
which  they  are  situated  they  are  part  of  the  lands  themselves, 
and  will  pass  with  such  without  being  expressly  mentioned  in 
the  conveyance.  Yet  in  the  construction  of  grants  of  "  mines 
and  minerals  "  courts  have  often  experienced  great  embarrass- 
ment in  giving  satisfactory  answers  to  the  questions  raised  by 
the  employment  of  those  terms.  Ordinarily  in  such  a  grant 
it  is  clear  that  the  vendor  did  not  intend  to  include  everj'thiug 
embraced  in  the  mineral  kingdom  as  distinguished  from  what 
belongs  to  the  animal  and  vegetable  kingdoms;  for, if  he  did, 
he  parted  with  the  soil  itself.     Such  a  construction,  therefore, 

1  People  V.  Jones,  112  N.  Y.  597.        N.  Y.  94:  and  see  Wharton  v.  Brick, 

2  See  People  v.  Jones,   112  N.  Y.    49  N.  J.  L.  289. 
597 ;  Higinbotham    v.    Stoddard,   72 


TIIK    LAND    CONVEYED,  393 

would  be  inconsistent  witii  and  rei)u<;nant  to  the  tenor  of  tho 
grant.  On  the  other  hand,  there  exists  no  more  propriety  in 
coniining  the  meanin'^''  of  the  terms  to  any  one  or  more  of  the 
subordinate  divisions  into  which  the  mineral  kin;,^dom  has  been 
divided  by  chemists  —  either  earthy,  metallic,  saline  or  bitumi- 
nous minerals.' 

In  such  a  case  the  ordinary  rules  of  construction  must  gov- 
ern. The  circumstances  surrounding  the  parties,  and  relating 
to  the  subject-matter  at  the  time  the  grant  was  made,  may  be 
shown  as  an  aid  to  interpretation;  but  no  extrinsic  evidence  is 
admissible  for  tho  purpose  of  showing  that  the  vendor  intended 
to  confine  the  operation  of  the  words  to  any  particular  class 
of  minerals  or  to  limit  or  define  their  meaning  for  the  purposes 
of  th^t  particular  agreement.  Parol  evidence  may  be  intro- 
duced to  show  the  scientific  and  popular  meaning  of  the  words 
"mines,"  "minerals,"  etc.,  under  an  exception  to  the  general 
rule;  for  where  any  doubt  arises  upon  the  true  sense  and 
meaning  of  the  words  themselves,  or  any  difficulty  as  to  their 
application  under  the  surrounding  circumstances,  the  sense  and 
meaning  of  the  language  may  be  investigated  and  ascertained 
by  evidence  deliors  the  instrument  itself.  In  some  cases  parol 
evidence  is  admissible  ex  necessitate;  as,  where  an  ambiguity  is 
created  by  extrinsic  evidence,  it  may  be  removed  in  the  same 
manner.- 

§  26.  Operation  of  erroneous  deed.  While  a  deed  cannot 
be  given  legal  effect  as  a  conveyance  for  any  other  or  different 

1  Mineral  has  been  defined :  "Those  minerals."  The  complainant  rejoins 
bodies  which  are  destitute  of  organ-  that  those  terms  did  not  include  the 
ization,  and  which  naturally  exist  substance  in  question.  The  parties 
within  tho  earth  or  at  its  surface."  must  therefore  give  evidence  as  to 
Cleveland's  Mineralogy,  p.  1.  "Sub-  the  character  of  the  material,  and 
stances  dug  out  of  the  earth  or  ob-  they  may  show  that  it  is  or  is  not 
tained  from  mines."  Bakewell's  embraced  in  the  scientific  and  pop- 
Mineralogy,  J).  7.  ular  use  of  the  terms  employed  by 

2 As  where   the  allegation  is  that  the  vendor.     See   Hartwell  v.  Cam- 

the  defendants  are  removing  from  man,  2  Stock.  Ch.  (N.  J.)  128.    In  tins 

complainant's  soil  a  j)articular  sub-  case  complainant   claimed   that  the 

stance   or   material.     The  answer  is  grant  onh'  included  copper:  the  de- 

tiiat  the  defendants  have  a  right  to  fendant  that  it  included  jiaint  clay, 

remove  it  because  it  was  conveyed  to  The  court  held  with  the  defendant, 
them  under  the  term  "  mines  and 


394  CONVEYANCE. 

property  than  that  which  it  purports  to  convey,  nor  be  ex- 
tended by  implication,  3^et  a  deed  raisdescribing  the  land  con- 
veyed will  still  be  sufficient  to  give  an  equitable  title  thereto, 
and  a  subsequent  deed  correcting  the  mistake  will  perfect  the 
same  into  a  legal  title.^ 

1  Fitch  V.  Gasser,  54  Mo.  267. 


THE   ESTATE   CONVEYED. 


395 


CHAPTER   XV. 


THE  ESTATE  CONVEYED. 


§1- 
2. 

;3. 

4. 


Generally. 

Rule  of  construction. 
Legal  and  equitable  estates. 
Words  of  inlieritance  and  lim- 
itation. 
The  rule  in  Shelley's  case. 
Effect  of  absolute  conveyance. 
Release  and  quitclaim. 
The  fee. 


^  9.     Future  estates. 

10.  Perpetuities. 

11.  Creation  of  life  estates. 

12.  Life  tenant  cannot  defeat  es- 

tate of  remainder-man. 

13.  Homesteads. 

14.  Incidents  of  the  grant  as  con- 

nected with  use  intended. 


§  1.  (generally.  AVhile  it  is  cnstomar}^  and  not  altogether 
improper  to  speak  of  the  land  as  the  subject  of  the  sale,  yet 
in  strict  legal  contemplation  it  is  the  vendor's  rights  and  inter- 
ests therein  as  comprehended  in  the  generic  term  "  estate  " 
that  are  actually  bought  and  sold.  The  primary  object  of  the 
conveyance  is  to  evidence  such  sale,  and  in  former  times  no 
little  ingenuity  was  displa3'ed  by  conveyancers  in  framing 
grants  of  estates  to  meet  and  keep  pace  with  the  refined  sub- 
tilties  of  courts,  and  the  English  works  as  well  as  a  few  of  the 
earlier  American  treatises  are  replete  with  much  curious  but 
now  obsolete  information  upon  this  point.  Tlie  real  reform 
in  American  conveyancing  has  been  effected  during  the  last 
fifty  3'ears;  and  while  the  marked  differences  in  the  land  sys- 
tem of  the  United  States,  as  compared  with  European  nations, 
have  at  all  times  been  conducive  to  simpler  methods  of  convey- 
ancing than  were  elsewhere  employed,  the  earlier  reports  still 
show  that  the  "  rule  in  Shelley's  case,"  and  kindred  legal  ab- 
stractions, were  at  one  time  potent  factors  in  the  production 
of  much  learned  discussion,  profound  opinions  and  deep  and 
exhaustive  reasoning. 

The  spirit  of  "  reform,"  which  from  the  inception  of  the  gov- 
ernment has  been  most  active  in  the  abrogation  of  old  laws, 
customs  and  usages,  has  made  the  creation  of  estates  a  most 
simple  and  in  a  majority  of  cases  easily  understood  matter, 
and  conveyancing  has  lost  its  position  as  an  intricate  and 
highly  refined   science.     Words  of  grant  and  purchase  were 


396  CONVEYANCE. 

formerly  a  necessity  to  measure  and  define  the  nature  and  ex- 
tent of  the  estate  conveyed,  but  so  comparatively  valueless 
and  without  effect  have  they  become  that  the  highest  estate 
known  to  our  law  may  be  created  and  transferred  without 
them.  Covenants  that  formerly  called  for  highly  artificiall}'' 
constructed  sentences  may  now  be  raised  by  a  single  word, 
and  in  every  other  department  of  conveyancing  the  departure 
from  old  methods  is  equally  noticeable. 

Good  conveyancing  still  calls  for  apt  language  in  the  fram- 
ing of  deeds  to  raise  and  convey  estates;  and  notwithstanding 
that  the  law  will  supply  by  implication  many  of  the  draughts- 
man's omissions,  yet  it  will  not  raise  or  create  estates  in  oppo- 
sition to  expressed  intent,  however  erroneous  such  expression 
may  be;  nor  will  it  cut  down  estates  which  result  by  implica- 
tion because  of  a  neglect  to  insert  the  proper  language  to 
create  such  lesser  estates.  Circumstance  may  induce  a  modi- 
fication of  this  rule  where  equit}'-  is  appealed  to  for  relief  in 
cases  of  fraud,  accident  or  mistake,  but  at  law  the  rule  holds 
good  without  exception. 

§  2.  Rule  of  construction.  The  legitimate  purpose  of  all  con- 
struction of  instruments  in  writing  is  to  ascertain  the  intention 
of  the  parties  making  the  same;  and,  when  this  is  determined, 
effect  must  be  given  thereto  accordingly,  unless  to  do  so  will 
violate  some  established  and  dominating  rule  of  law.  This  is 
so  as  well  in  respect  to  the  estate  granted  as  to  the  parties,  the 
thing  granted  or  the  title.  As  it  cannot  be  presumed  that  words 
or  terms  in  a  conveyance  were  used  without  a  meaning,  or 
having  some  effect  given  to  them,  therefore  if  it  can  be  done 
consistently  wuth  the  rules  of  law,  that  construction  will  be 
adopted  which  will  give  effect  to  the  instrument  and  to  each 
word  and  term  employed,  rejecting  none  as  meaningless  or 
repugnant.  So,  in  the  construction  of  estates,  the  nature  and 
quantity  of  interest  or  estate  granted  by  a  deed  are  to  be 
ascertained  by  the  deed  itself,  and  are  to  be  determined  by 
the  courts  as  a  matter  of  law.^ 

§  3.  Legal  and  equitable  estates.  Estates  are  classed  as 
leo-al  and  equitable,  the  former  being  those  w^hich  have  their 

iLehndorf  v.   Cope,   122  III.  317;   v.  Sisson,  13  N.  J.  Eq,  178;  Bond  v. 
Lippett  V.  Kelley,  46  Vt.  516;  Cald-   Fay,  12  Allen  (Mass.),  88. 
well  V.  Fulton,  31  Pa.  St.  489 ;  Price 


TJiii  KSTATK  convp:yed.  397 

orif^in  and  derive  their  qualities  and  incidents  from  the  com- 
mon law,  and  the  latter  those  which  are  derived  from  the  rules 
and  principles  whicli  prevail  in  courts  of  equity.  Formerly 
every  estate  was  Ici^al  in  the  proper  acceptation  of  that  term, 
and  in  the  contemplation  of  law  there  is  and  can  be  but  one 
estate,  which  may  properly  be  denominated  the  legal  estate. 
But  the  introduction  of  what  were  known  as  uses,  and  the 
subsequent  origination  of  trusts,  where  one  party  held  the 
title  but  upon  some  trust  or  confidence  for  another,  early  led 
the  court  of  chancerv  to  take  cognizance  of  the  rifrhts  of  the 
beneficiary,  and  thus  there  grew  up  a  double  ownership  of 
lands  thus  situated,*  the  interests  which  were  cognizable  as  such 
only  in  a  court  of  equity  taking  the  name  of  equitable  to  dis- 
tinguish them  from  legal  estates. 

As  a  rule  any  legal  conveyance  will  have  the  same  effect 
upon  an  equitable  estate  that  it  would  have  upon  the  like 
estate  at  law ;  and  whatever  is  true  at  law  of  the  latter  is  true 
in  equity  of  the  former.  Thus,  the  rule  in  Shelley's  case, 
where  it  is  permitted  to  operate  as  a  rule,  applies  alike  to 
equitable  and  legal  estates,  and  an  equitable  estate-tail  may 
be  barred  in  the  same  manner  as  an  estate-tail  at  law.'- 

§  4.  Words  of  inheritance  anil  limitation.  It  is  an  un- 
varying rule  of  the  common  law  that  an  estate  of  inheritance 
cannot  be  created  by  deed  without  the  employment  of  the 
word  "  heirs;" '  and  in  those  states  where  this  rule  has  not  been 
altered  by  statute,  or  modified  or  relaxed  by  judicial  construc- 
tion, no  synonym  can  supply  the  omission  of  this  word,  nor  can 
the  legal  construction  of  the  grant  be  affected  by  the  inten- 
tion of  the  parties.^  In  conformity  to  this  rule  it  is  customary 
to  insert  words  of  limitation  in  the  premises  of  the  deed;  and 
this  practice,  which  is  sanctioned  if  not  enjoined  by  all  the 
rules  of  good  conveyancing,  is  a  desirable  one  to  follow,  even 

1  Upon  the  principle   that   he  for  in  feoffments  and  grants  the  word 

whoso    use   the   land   was   designed  'heirs' is   the   only   word   that   will 

was  the  rightful  owner  thereof.  make    an    estate     of     inheritance." 

2Croxall  V.  Shererd,  5  Wall.  (U.  S.)  Coke,  Litt.  8,  96. 
268.  ■•  Kearney  v,  Macomb,  IG  N.  J.  Eq. 

3In  this  respect  deeds  differ  from  189;  Adams  v,  Ross,  30  N.  J.  L.  505. 

testamentary  papers ;  for  in  a  will,  as  See,  also,  Jackson  v.  Meyers,  3  Johus. 

has  been  said,   "a  fee-simple  doth  (N.  Y.)  388. 
pass  by  the  intent  of  the  devisor ;  but 


398  CONVEYANCE. 

where  its  necessity  is  no  longer  recognized.  But  it  is  also  a 
maxim  of  the  highest  antiquity  in  the  law  that  all  deeds  shall 
be  construed  favorably,  and  as  near  the  apparent  intention  of 
the  parties  as  is  possible,  consistent  with  established  legal 
rules;  and  hence  while  to  create  a  fee  the  limitation  must  be 
to  "  heirs,"  it  seems  that  this  may  be  accomplished  either  in 
direct  terms  or  by  immediate  reference,  and  that  it  is  not  es- 
sential that  the  word  be  located  in  any  particular  part  of  the 
grant.^ 

The  practical  ajiplication  of  the  foregoing  rules,  however, 
is  now  very  much  restricted  in  the  United  States;  for  while 
words  of  purchase,  inheritance  and  limitation  were  once  of 
the  very  essence  of  the  deed,  yet  by  reason  of  sweeping  stat- 
utory provisions,  generally  enacted  throughout  the  Union, 
the}'  are  now  comparatively  without  value  or  legal  efifect.  Al- 
though invariably  inserted  by  careful  conveyancers,  they  are 
in  most  of  the  states  no  longer  necessary  to  create  or  convey 
a  fee;^  and,  as  a  general  rule,  every  grant  of  lands  will  pass 
all  the  estate  or  interest  of  the  grantor,  unless  a  different  in- 
terest shall  appear  by  express  terms  or  necessary  implication  — 
the  question  of  the  estate  transferred  being  determined  rather 
by  the  end  sought  to  be  attained  by  the  grantor  than  by  the 
language  employed.* 

In  order  to  create  a  less  estate  than  a  fee,  it  is  not  necessary 
that  there  should  be  express  words  of  limitation,  either  under 
the  statute  or  at  common  law.  It  is  sufficient  for  that  pur- 
pose if  it  appear,  by  necessary  inplication,  that  a  less  estate 
was  granted.'' 

1  See  4  Kent,  Com.  6 ;  Shep.  Touch.  Oregon,  Tennessee,  Texas,    Virginia 

101.     Where  words    of    inheritance  and  Wisconsin.     They   would  seem 

appear  only  in  one  part  of  the  deed,  to  be  necessary  in  Connecticut,  Del- 

which   is   inartificially   worded,   but  aware,  Florida,  Kentucky,  Louisiana, 

the  intention  to  pass  a  fee  appears  Mame,    New    Jersey,    Ohio,    Rhode 

from  the  entire  instrument,  it  will  Island  and  Vermont.    In  some  states, 

be  so  construed.     Hicks  v.  Bullock,  while  there  is  no  express  provision, 

96  N.  C.  164.  the  statutory  forms  would  imply  that 

-  Words    of    inheritance    are    no  words  of    inheritance  are  unncces- 

longer  necessary  in  Alabama,  Arkan-  sar}'. 

sas,    California,    Dakota,    Colorado,        ^Hawkins    v.    Chapman,    o6    Md. 

Georgia.  Illinois,  Indiana,  Iowa,  Kan-  S3:  Kirk   v.  Burklioltz,   0  Tenn.  Ch. 

sas,    Maryland,     Minnesota,    Missis-  425;  Lehndorf  v.  Cope,  122111.  317. 
sippi,  Missouri,  Montana.  Nebraska,        *  Lehndorf  v.  Cope,  123  111.  317. 
Nevada,  New  York,  North  Carolina, 


THE   E8TATE   CONVEYED.  399 

Corporations,  like  natural  persons,  may  take  land  by  every 
method  of  conveyance  known  to  the  law.  Ilavinf^  no  "  heirs  " 
it  is  customary  to  insert  the  term  "successors"  as  a  word  of 
limitation,  and  the  employment  of  such  term  has  been  held  to 
create  and  pass  a  fee.^  It  does  not  seem,  however,  that  such 
word  is  necessary  to  convey  a  fee,  independent  of  the  statute 
which  provides  for  a  fee  unless  restrained  by  express  terms 
or  necessary  implication;  for  admitting  that  such  a  grant  is 
strictly  only  a  life  estate,  yet  as  a  corporation,  unless  of  limited 
duration,  never  dies,  such  estate  for  life  is  perpetual  or  equiva- 
lent to  a  fee-sim])le,  and  therefore  the  law  allows  it  to  be  one,- 
while  it  has  been  held  that  a  deed  to  a  corporation  is  presum- 
ably a  conveyance  in  fee,  although  the  corporation  is  chartered 
only  for  a  term  of  years.' 

§  5.  The  rule  in  Shelley's  case.  Among  the  early  legal 
abstractions  Avhich  grew  out  of  the  efforts  of  jurists  to  carry 
into  effect  the  general  intent  of  a  grantor  or  testator  by  an- 
nexing particular  ideas  of  property  to  particular  modes  of  ex- 
pression was  the  adoption  of  the  principle  that,  where  a  con- 
veyance is  made  to  a  person  for  life,  remainder  to  his  heirs  or 
the  heii's  of  his  body,  instead  of  giving  him  a  life  estate  and  a 
contingent  remainder  to  the  heirs,  it  vests  a  fee-simple  or  an 
estate-tail  in  the  first  grantee.  This  construction  is  said  to 
liave  been  adopted  for  the  purpose  of  saving  to  the  lord  the 
profits  or  perquisites  incident  to  inheritances,  and  also  upon 
the  general  ground  of  preventing  an  abeyance  of  the  fee,  which 
would  render  it  inalienable  during  the  life  of  the  first  taker. 
The  principle  was  recognized  from  a  very  early  period,  but  only 
became  finally  established  in  a  proceeding  called  ''  Shelley's 
case;"  and  from  the  notoriety  which  the  case  has  received 
from  its  subsequent  frequent  citation  in  connection  with  the 
application  of  the  rule  therein  laid  down,  it  has  acquired  a 
world-wide  renown  as  "  the  rule  in  Shelley's  case."  * 

1  Storrs  Agricultural  School  V.  Whit-  were  as  follows:  E,  Shelley,  tenant 
ney,  54  Coiiu.  342.  in  tail,  suffered  a  recovery  and  de- 

2  Overseers  V.  Sears,  22  Pick.  (Mass.)  clared  the  uses  of  it  to  himself  for 
122;  Congregational  Society  v.  Stark,  life,  without  impeachment  of  waste, 
34  Vt.  243.  remainder  to  a  trustee  for  twenty- 

^Asheville   Division   v.    Aston,  93    four  years,  remainder  to   the   heirs 

N.  C.  578.  male  of  the  body  of  E.  Shelley  and 

*  The  facts  of  this  celebrated  case   the  heirs  male  of  the  body  of  such 


400  CONVEYANCE. 

This  remarkable  rule  has  been  productive  of  an  almost  in- 
credible amount  of  controversial  disquisition  and  an  apparently 
innumerable  number  of  decisions  both  in  England  and  the 
United  States;  and,  notwithstanding  the  fact  that  in  this  coun- 
try there  can  be  no  entailed  estates,  strictly  speaking,  the  rule 
still  has  a  modified  force,  and  is  often  resorted  to  as  a  rule  of 
construction,  particularly  in  cases  where  the  questions  involved 
turn  upon  the  point  as  to  whether  the  conveyance  which  forms 
the  foundation  of  title  passed  only  a  life  estate  or  a  fee. 

The  rule  as  defined  by  Kent  is  as  follows:  "AVhen  a  person 
takes  an  estate  of  freehold,  legally  or  equitably,  under  a  deed, 
■will  or  other  writing,  and  in  the  same  instrument  there  is  a 
limitation  by  way  of  remainder,  either  with  or  without  the 
interposition  of  another  estate,  of  an  interest  of  the  same  legal 
or  equitable  quality,  to  his  heirs  or  heirs  of  his  body,  as  a  class 
of  persons,  to  take  in  succession  from  generation  to  genera- 
tion, the  limitation  to  the  heirs  entitles  the  ancestor  to  the 
whole  estate." '  Mr.  Preston,  in  his  essa}^  on  the  rule  in  Shelley's 
case,  among  several  definitions,  gives  the  following:  "In  any 
instrument,  if  a  freehold  be  limited  to  the  ancestor  for  life, 
and  the  inheritance  to  his  heirs,  either  mediately  or  immedi- 
ately, the  first  taker  takes  the  whole  estate;  if  it  be  limited  to 
the  heirs  of  his  body  he  takes  a  fee-tail;^  if  to  his  heirs,  a  fee- 
heirs  male,  remainder  over.  Held,  by  ance  in  him;  and  when  it  does  not 
the  chancellor  and  all  the  judges  ex-  apply  the  children  or  other  relations, 
cept  one,  that  E.  Shelley  took  an  es-  under  the  denomination  of  heirs, 
tate-tail.  The  decision  rested  upon  have  an  original  title  in  their  own 
the  ground  that  if  R.  Slielley,  the  right  and  as  pui-ciiasers  by  that  name, 
first  son  of  E.  Shelley,  took  by  pur-  The  policy  of  the  rule  was  that  no 
chase  and  not  by  inheritance,  then  person  should  be  permitted  to  raise 
no  other  son  of  E.  Shelley  could  ever  in  another  an  estate  of  inheritance 
take  the  estate,  which  would  disap-  and  at  the  same  time  make  the  heirs 
point  the  word  "  heirs"  (of  E,  Shelley)  of  that  person  purchasers.  4  Kent, 
in  the  deed ;  and  that  the  limitation   Com.  216. 

to  the  heirs  male  of  the  heirs  male  of  -An  estate-tail  is  where  lands  are 
E.  Slielley  did  not  control  the  prior  given  to  one  and  the  heirs  of  his  body 
limitation,  but  was  merely  declara-  begotten.  Both  the  words  of  inher- 
tory,  because  every  heir  male  of  the  itance  and  words  of  procreation  must 
heir  male  of  E.  Shelley  was  an  heir  appear.  2  Black.  Com.  115.  This 
male  of  E.  Shelley  himself.  2  Hill,  point  becomes  important  in  this  con- 
Abridg.  22.  nection  where,  as  in  some  states,  the 

1 4  Kent,  Com.  225.    When  the  rule   entail  is  saved  to  the  first  degree.  See 
applies  the  ancestor  has  the  power  of    Butler  v.  Huestis,  68  111.  594. 
annihilation,  for  he  has  the  inherit- 


Tllli    KSTATK    CONVKYKD.  401 

simple/'  The  delinition  by  Kent  is  that  wliich  is  generally 
received  as  an  authoritative  exposition  of  the  doctrine;  and  as 
.estates-tail  have  been  generally  abolished  in  this  country,  the 
rule  thus  stated  ap|)lies  generally  to  all  cases  where  there  is  a 
grant  of  a  particular  estate  to  the  grantee  with  remainder  over 
to  a  class  of  persons  designated.  In  such  cases,  under  the  rule, 
the  words  "  heirs"  or  '"heirs  of  the  body"  are  regarded  as 
words  of  limitation  and  not  of  purchase/  In  some  states, 
however,  while  estates-tail  as  they  existed  under  the  old  law 
have  been  abolished,  yet  the  statute  has  saved  the  entail  to  the 
first  degree,  thus  giving  a  life  estate  to  the  first  taker  and 
vesting  in  the  second  taker  a  remainder  in  fee.  In  those  states, 
therefore,  the  rule  as  defined  b}'^  Preston  is  adopted,  and  when 
the  remainder  is  to  the  "heirs  of  the  body"  the  estate  thus 
conferred  is  in  the  nature  of,  if  not  an  estate-tail,  to  which  the 
rule  in  Shelley's  case  does  not  apply.  The  words  of  heirship 
and  procuration,  in  such  event,  will  be  regarded  as  words  of 
purchase  and  not  of  limitation,  and  the  first  taker  will  take 
only  a  life  estate,  and  the  heirs  of  his  body  will  take  the  re- 
mainder in  fee-simple." 

"With  resj)ect  to  the  effect  of  this  rule  the  authorities  differ. 
Thus,  in  some  instances  it  is  held  that  the  rule  is  not  one  of 
construction,  but  an  inexorable  rule  of  law,  that  where  the  an- 
cestor takes  a  preceding  freehold  a  remainder  shall  not  be  lim- 
ited to  his  heirs  as  purchasers.''  On  the  other  hand,  it  is  held  in 
well-considered  cases  that  the  rule,  at  most,  is  only  a  technical 
rule  of  construction,  and  must  give  way  to  the  clear  intention 
of  the  donor,  when  that  intention  can  be  ascertained  from  the 
instrument  in  which  the  words  supposed  to  be  words  of  limita- 
tion are  used.^     This  is  the  view  now  generally  taken. 

'  See  Bradford  v.  Howell,  42  Ala.  vests  in  such  grantee  the  title  to  such 

422;    Forrest   v.    Jackson,  56   N.   H.  real  estate  in  fee-simple,  the  words 

357;  Smith  v.  Block,  29  Ohio  St.  488;  "  issue  of  her  body  "  being  words  not 

King  V.   Re;i,  50   Ind.    1;   Butler  v.  of  purchase  but  simply  of  limitation. 

Huestis,  68  III.  594;  Baker  v.  Scott,  King  v.  Rea,  56  Ind.  1. 

C2  111.  88.     Thus,  a  deed  which  "con-  «  Butler  v.  Iluestia,  68  111.  594. 

veys  and  warrants"  certain  real  ea-  '•See   Ridgeway   v.   Lamphear,  00 

(ate  to  the  grantee  "during  her  life,  Ind.  251 ;  Ware  v.  Richardson,  8  Md, 

in  remainder  to  the  issue  of  her  body,  505  ;  Cooper  v.  Coojier,  C  R.  I.  261. 

their  heirs  and  assigns  forever,"  falls  *  Bclslay  v.  Engel,  107  111.  182, 
within  the  rule  in  Shelley's  case,  and 
20 


402  CONVEYANCE. 

§  6.  Effect  of  absolute  conveyance.  It  is  now  a  general 
statutory  rule  that  every  conveyance  of  real  estate  shall  pass 
all  the  estate  of  the  grantor,  unless  a  different  intent  shall  ap- 
pear by  express  terms  or  necessary  implication.  So  where  a 
deed  purports  to  convey  all  the  interest  and  title  of  the  grantor, 
effect  will  be  given  to  it  accordingly,  although  he  actually  held 
a  greater  interest  than  he  at  the  time  of  the  conveyance  sup- 
posed he  owned. ^  So,  too,  it  has  been  held  if  the  terms  of  a 
deed  clearly  show  that  it  was  meant  to  pass  an  absolute  estate 
to  the  land  itself,  and  not  merely  the  estate  which  the  grantor 
had  at  the  time,  it  will  bind  and  pass  every  estate  or  interest 
which  may  vest  in  him  subsequently  to  its  execution,  and  this 
though  it  contain  no  warranty.'-  This,  however,  is  contrary  to 
the  general  policy  of  the  law  which  confines  the  office  of  a 
conveyance  to  the  transmission  of  whatever  estate  the  grantor 
may  possess;  and  while  after-acquired  title  is  permitted  to 
inure  on  the  principle  of  estoppel,  it  is  usual  only  when  cove- 
nants of  sufficient  capiicity  have  been  inserted  in  the  deed. 
But  this  latter  rule,  while  of  general  application  and  observ- 
ance, is  not  without  exception;  and  under  the  doctrine  of  rela- 
tion, as  applied  for  the  protection  of  hona  fide  purchasers,  if  a 
party  having  the  equitable  title  to  land  and  being  entitled  to 
the  legal  title  thereof,  conveys  the  same  by  a  deed  purporting 
to  transfer  the  entire  estate,  and  subsequently  acquires  the 
legal  title,  it  will  inure  to  his  grantee,  notwithstanding  such 
deed  was  made  without  covenants  of  warranty  or  further  as- 
surance.^ This  doctrine  proceeds  upon  the  principle  that,  where 
there  are  divers  acts  concurrent  to  make  a  conveyance,  estate 
or  other  thing,  the  original  act  will  be  preferred,  and  to  this 
the  other  acts  will  have  relation.' 

If  the  deed  purports  to  convey  all  the  interest  of  the  grantor, 

^  A  party  is  bound  to  know  enough  ^  The  fiction  of  relation  is  that  an 

about  his  title  not,   by  his  want  of  intermediate  &o?ia^cZe  alienee  of  the 

knowledge  of  it,  to  mislead  a  pur-  incipient  interest  may  claim  that  the 

chaser.     Thomas  v.  Chicago,  55  111,  deed  issued   to  pass  the  legal   title 

403.  inures  to  his  benefit  by  an  e.r  jiost 

2  Taggart  v.  Risley,  4  Oreg.  235.  facto    operation,    and    receives  the 

3  Welch  V.  Button,  79  III.  465;  Jack-  same  protection  at  law  that  a  court 
son  V.  Ramsay,  3  Cow.  (N.  Y.)  75.  of  equity  could  afford  him.  Lesseo 
See,  also,  Crowley  v.  Wallace,  12  of  French  v.  Spencer,  21  How.  (U,  S.) 
Mo.  145.  228. 


THE  estatp:  conveyed.  403 

but  a  clause  is  also  inserted  stating  that  the  interest  conveyed 
is  only  that  acquired  by  the  grantor  in  some  particular  man- 
ner or  from  some  particular  person,  the  conveyance  should  be 
interpreted  in  the  light  of  the  extrinsic  facts,  and  the  grant 
v»'ould  be  a  conveyance  of  whatever  interest  the  grantor  liad, 
whether  acquired  as  stated  or  otherwise; '  and  if  it  should  ap- 
pear that  the  grantor  had  acquired  no  interest  in  the  manner 
specified  or  fiom  the  person  named,  but  did  own  an  interest 
acquired  from  another  person,  the  interest  thus  acquired  would 
pass.  This  is  upon  the  principle  that  a  deed  is  to  be  so  con- 
strued as,  if  possible,  to  give  elTect  to  it  as  a  conveyance;  and 
if  it  contains  a  clause  wiiich  is  repugnant  to  the  general  inten- 
tion of  the  deed,  this  clause  is  void.^  But  where  the  deed  pur- 
ports to  convey  only  a  certain  interest  or  an  interest  acquired  in 
a  certain  manner,  this  has  been  held  to  exclude  any  interest 
acquired  in  any  other  manner.  Thus,  if  the  deed  purports  to 
convey  the  interest  devised  to  the  grantor  in  certain  property, 
it  does  not  convey  an  interest  descending  to  him." 

As  a  general  proposition,  a  deed  will  not  operate  to  conve}-- 
a  greater  interest  than  it  purports  to,  although  the  grantor 
has  a  power  to  convey  more  than  is  described.* 

§  7.  Release  and  quitclaim.  A  deed  of  bargain  and  sale, 
by  way  of  release  and  quitclaim  of  all  the  grantor's  right  and 
title,  purports  to  convey  nothing  more  than  the  interest  or  es- 
tate of  which  the  grantor  is  seized  or  possessed  at  the  time, 

1  Miner's  Appeal,  61   Pa.  St.   283.  grant  was  a  conveyance  of  whatever 

In  this  case  the  grantor,  describing  interest  the  grantor  had  as  widow  or 

herself  as  J.,  the  widow  of  M.,  con-  otherwise.     And  see  Little  v.  King, 

veyed  to  T.,  "  his  heirs,   executors,  61  N.  C.  361. 

administrators    and  assigns,  all  her  -Wilcoxson    v.    Sprague,    51    Cal. 

estate,    right    title,    interest,    claim  640. 

and  demand  whatsoever  "  in  a  cer-  '  Munds  v.  Cassidey,  98  N.  C.  558. 
tain  piece  of  land,  "to  have  and  to  ^Aswhere  A.,  holding  in  his  own 
hold  the  premises  hereby  granted,"  right  a  moiety  of  the  property  in 
etc.,  unto  T.,  his  heirs,  etc.,  "  for  and  question,  and  liaving  a  power  of  at- 
during  the  life  of  the  said  J.;  the  torney  to  convey  the  interest  of  B., 
interest  hereby  conveyed  being  an  the  owner  of  the  other  moiety,  made 
estate  of  freehold  for  and  during  the  a  deed  of  mortgage  of  the  wliole, 
life  of  said  J.,  and  being  all  the  without  in  terms  undertaking  to  con- 
interest  of  her,  the  said  J.,  in  the  es-  vey  tiie  interest  of  B.  IMd,  that  the 
tate  of  the  said  M.,  deceased,  as  his  deed  conveyed  only  the  interest  of 
widow,  of,  in  and  to  the  premises  A.  Shirras  v.  Caig,  7  Crauch  (U.  S.), 
above   described."    Held,    that    the  34. 


404  CONVEYANCE. 

and  does  not  operate  to  pass  or  bind  an  interest  not  then  in 
existence.' 

It  has  been  hekl,  however,  that  this  principle  is  apf^hcable 
only  to  a  quitclaim  deed  in  the  strict  and  proper  sense  of  that 
species  of  conveyance,  and  that  if  the  deed  bears  on  its  face 
evidence  that  the  grantors  intended  to  convey,  and  the  grantee 
expected  to  become  invested  with  an  estate  of  a  particular  de- 
scription or  quality,  and  that  the  bargain  had  proceeded  upon 
that  footing  between  the  parties,  then,  although  it  may  not 
contain  covenants  of  title  in  the  technical  sense  of  the  term, 
still  the  legal  operation  and  effect  of  the  instrument  will  be  as 
binding  on  the  grantor  and  those  claiming  under  him,  in  re- 
spect to  the  estate  thus  described,  as  if  a  formal  covenant  to 
that  effect  had  been  inserted ;  at  least  so  far  as  to  estop  them 
from  ever  afterwards  denying  that  he  was  seized  of  the  par- 
ticular estate  at  the  time  of  the  conveyance." 

In  construing  releases,  especially  where  the  same  instrument 
is  to  be  executed  by  various  persons  standing  in  various  rela- 
tions and  having  various  kinds  of  claims  against  the  releasee, 
general  words,  though  the  most  comprehensive,  are  to  be  lim- 
ited to  particular  demands  where  it  manifestly  appears,  by  the 
consideration,  by  tlie  recital,  and  by  the  nature  and  circum- 
stances of  the  demands,  to  one  or  more  of  which  it  is  proposed 
to  apply  the  release,  that  it  was  so  intended  to  be  limited  by 
the  parties.'' 

§  8.  The  fee.  The  highest  estate  in  land  known  to  our  law 
is  called  the  fee,  or,  as  it  is  sometimes  written,  ihQ  fee-simjyle  — 
a  term  indicative  of  absolute  and  unqualified  ownership  with 
all  its  incidents.*  The  name  itself  is  borrowed  from  the  feudal 
system  of  England,  and  originally  denoted  the  tenure  b}'  which 
the  land  was  held;  but  aside  from  this  there  is  nothing  feudal 


1  Van    Eensselaer  v.   Kearney,  11  tional    and    fee-simple    qualified   or 

How.  (U.  S.)  297.  base  fee,  and  to  some  extent   this 

^  See  Van  Rensselaer  v.  Kearney,  classification  seems  to  have  been  rec- 

11  How.  (U.  S.)  297.  ognized  by  American  courts  during 

3Richv.  Lord,  18  Pick.  (Mass.)  382;  very  recent  years;  yet,  as   was  ob- 

Lyman  v.  Clark,  9  Mass.  235.  served  by  Mr.  Preston  (1  Prest.  Est. 

*  The    fee-simple   was  divided    by  429),  in  point  of  accuracy  it  cannot  be 

Coke  and  the  earlier  writers  into  fee-  properly  a  fee-simple  if  it  is  either 

simple    absolute,    fee-simple    condi-  base,  conditional  or  qualified. 


TnE   ESTATE   CONVEYED.  405 

about  it,  while  the  title  to  all  lands  in  the  country  is  strictly 
allodial. 

In  all  sales  of  land,  unless  some  lesser  estate  is  specifically 
mentioned,  the  subject  of  the  sale  is  understood  to  be  the  fee. 
Formerly  much  care  and  circumspection  was  required  in  draw- 
ing conveyances  of  the  fee,  and  parties  not  infrequently  de- 
feated their  own  intentions  b}--  the  ignorant  or  negligent 
omission  of  words  which  were  considered  essential  to  the  crea- 
tion of  this  estate.  These  were  known  as  words  of  inheritance 
and  limitation,  and  consisted  of  the  words  "heirs"  or  "heirs 
and  assigns  forever."  Great  importance  was  attached  to  their 
use,  and,  notwithstanding  the  parties  may  have  intended  to 
convey  the  fee,  courts  refused  to  give  effect  to  such  inten- 
tion where  all  mention  of  the  heirs  was  omitted.  It  is  still 
customary  to  insert  these  words  in  deeds  and  conveyances,  but 
they  are  no  longer  necessary  to  create  or  transfer  a  fee ;  and 
as  a  rule  every  grant  of  lands  will  pass  all  the  estate  or  inter- 
est of  the  grantor,  unless  a  different  interest  shall  appear  by 
express  terms  or  necessary  implication^  —  the  question  of  the 
estate  transferred  being  determined  rather  by  the  end  sought 
to  be  attained  by  the  grantor  than  b}''  the  language  employed.^ 

§  9.  Future  estates.  Broadly  stated,  no  estate  in  real  prop- 
erty can  be  bargained,  sold  or  released  before  it  is  acquired  by 
the  grantor.  A  mere  expectation  or  belief  that  a  party  will 
at  some  future  time  acquire  an  interest  in  certain  property  is 
not  in  itself  an  estate  or  interest  of  any  kind,  and  cannot  be 
conveyed  by  deed.'  But  where  lands  are  convej^ed  by  deed  of 
bargain  and  sale  simply,  which  ordinarily  operates  only  to 
transfer  vested  estates  and  interests,  if  it  distinctly  appears  on 
the  face  of  the  deed  that  it  was  intended  to  transfer  any  future 
interest  which  the  grantor  might  acquire,  equity  will  treat  the 
deed  as  an  executory  agreement  to  convey,  and  compel  the 
grantor  to  convey  the  subsequently-acquired  interest.* 

Where  the  grantor  actually  possesses  a  full  estate  in  land  he 
may,  as  a  rule,  carve  out  of   it  an  estate  to  commence  i?i 

1  Merritt  v.  Disney,  48  Mil,  344.  »  Lamb  v.  Kanim,  1  Sawyer  (C.  Ct.), 

2  Hawkins  v.  Ciiapman,  36  Md.  83;    238. 

Kirk  V.  Burkholtz,  3  Tonn.  Cli.  425;       <  Ilannon   v.  Christopher,  34  N.  J. 
and  see  Hicks  v.  Bullock,  96  N.  C.    Eq.  459. 
164 ;  Henderson  v.  Mack,  83  Ky.  379. 


40G  CONVEYANCE. 

faturo.  At  common  law  an  attempt  to  create  or  convey  a  free- 
hold or  estate  of  inheritance  in  futuro  was  a  nullity,  the 
nearest  approach  being  a  covenant  to  stand  seized  to  uses; 
and  this  was  only  permissible  when  the  consideration  was 
blood  or  marriage.^  But  under  the  statutes  now  in  force  in  a 
majority  of  the  states  the  owner  of  real  estate  may  convey,  in 
the  manner  prescribed,  any  part  or  portion  of  his  estate,  as  he 
and  his  grantee  may  agree,  subject  only  to  those  restrictions 
which  the  law  imposes,  as  required  by  public  policy,  but  re- 
lieved from  technical  doctrines  which  arose  out  of  ancient 
feudal  tenures,  and  all  the  res'trictive  effect  which  they  had 
upon  alienation.  Hence,  it  has  frequently  been  held  that  a 
conveyance  of  real  estate  to  take  effect  in  futuro  is  good  and 
valid  without  the  creation  of  any  intermediate  estate  to  sup- 
port it.2 

It  must  be  understood,  however,  that  while  it  is  competent 

1  Jackson  v.  McKenny,  3  Wend,  and  we  fail  to  see  that  it  can  work 
(N.  Y.)  233;  Brewster  v.  Hardy,  22  injury  to  any  one."  In  Abbott  v. 
Pick.  (Mass.)  380;  Spaulding  v.  Halway,  73  Me.  298,  Barrows,  J., 
Gregg,  4  Ga.  81;  3  Black.  Com.  338;  says:  "The  mere  technicalities  of 
4  Kent,  Com.  234.  ancient  law  are  dispensed  with  upon 

2  In  Shackelton  v.  Sebree,  86  III.  compliance  with  statute  require- 
616,  the  conveyance  was  not  to  be  ments.  The  acknowledgment  and 
recorded  or  take  effect  until  the  recording  are  accepted  in  place  of 
death  of  the  grantor.  Walker,  J.,  livery  of  seizin,  and  it  is  competent 
said:  "Our  statute  has  abolished  to  fix  such  time  in  the  future  as  the 
livery  of  seizin,  and  deeds  of  feoff-  parties  may  agree  upon  as  the  time 
ment  have  gone  out  of  use,  and  when  the  estate  of  the  grantee  shall 
lands  are  conveyed  by  deed  of  bar-  commence.  No  more  necessity  for 
gain  and  sale ;  and,  under  the  stat-  limiting  one  estate  upon  another,  or 
ute  of  uses,  the  use  is  executed  and  for  having  an  estate  of  some  sort 
the  title  passes  to  the  grantee  on  de-  pass  immediately  to  the  grantee  in 
livery  of  the  depd.  And  holding  the  opposition  to  the  expressed  intention 
fee,  the  law  holds  he  is  seized  not  of  the  parties.  The  feoffment  is  to 
only  of  the  title,  but  of  the  posses-  be  regarded  as  taking  place  and  the 
sion,  as  the  fee  draws  to  it  posses-  livery  of  seizin  as  occurring  at  the 
sion  in  law.  '  .  .  By  giving  effect  time  fixed  in  the  instrument ;  and 
to  such  conveyances  we  only  estop  the  acknowledgment  and  recording 
the  grantor  by  his  covenants,  and  are  to  be  considered  as  giving  the 
hold  that  he  stands  seized  to  the  use  necessary  publicity  which  was  sought 
of  the  grantee  as  in  other  deeds  of  in  the  ancient  ceremony."  And  see 
bargain  and  sale.  We  give  effect  to  Kent  v.  Atlantic  De  Laine  Co.,  8 
the  statute  of  uses.     We  carry  into   R.  L,  305. 

effect  the  intention  of  the  parties, 


TIIK    KSTATK    CONVKYED.  407 

for  a  grantor  to  convey  an  estate  to  commence  in  futuro 
without  any  intermediate  estate  to  support  it,  it  is  necessary, 
nevertheless,  that  the  deed  should  have  delivery  equally  as  in 
case  of  present  grant;  and  while  the  title  may  not  actually 
vest  until  the  death  of  the  grantor,  delivery  is  essential  to 
make  the  deed  effective,  and  this  delivery  must  be  in  the 
grantor's  life-time  —  that  is,  there  must  be  an  actual  or  con- 
structive delivery  during  the  life  of  the  grantor,  or  a  delivery 
after  his  death  which  takes  eflect  by  relation  at  some  i)eriod 
during  his  life.  A  delivery  after  death  may  be  made  by  some 
])erson  holding  the  iXiidA  as  a  trustee,  or  having  tiie  same  in 
possession  as  escrow.  A  deed  will  not  usually  be  permitted  to 
perform  the  ofHce  of  a  will,  and  if  there  is  no  deliver}''  during 
life  there  can  be  none  after  death. ^ 

§  10.  Perpetuities.  It  cannot  be  said  to  be  other  than  a 
natural  desire  on  the  part  of  a  land-owner  — one,  indeed,  that 
seems  to  be  inherent  in  human  nature  —  to  continue  his  acquisi- 
tions in  his  own  family  as  long  as  possible,  and  to  erect  what 
in  law  is  termed  a  perpetuity.  It  has  long  been  settled  in 
England  that  real  property  may  be  rendered  inalienable  dur- 
ing the  existence  of  a  life  or  lives  in  being  and  twent^^-one 
years  thereafter;  or,  in  case  of  a  posthumous  child,  a  few 
months  more,  allowing  for  the  term  of  gestation.  Originally 
only  one  life  in  being  was  permitted,  but  from  one  life  the 
courts  gradually  proceeded  to  several  lives  in  being  at  the 
same  time,  on  the  principle  that  this  in  fact  onl}'^  amounted 
to  the  life  of  the  survivor.  Any  limitation  tending  to  extend 
the  estate  beyond  this  period  is  termed  a  perpetuity,  and  the 
limitation  is  void. 

Except  as  altered  or  abrogated  by  legislation  this  rule  has 
practically  been  adopted  in  the  United  States,  and  forms  the 
basis  of  methods  of  construction  of  deeds  and  testamentary 
grants.-  By  statute,  in  some  states,  the  absolute  power  of 
alienation  cannot  be  suspended  by  any  limitation  or  condition 
whatever  for  a  longer  period  than  during  the  continuance  of 
two  lives  in  being  at  the  creation  of  the  estate,'  while  a  mani- 

*  Huey  V.  Hue}',  65  Mo.  689.  This  was    first   enacted  in   New 

2See  Loring  V.  Blakp,  98  Mass.  253;  York     with     the     other     sweeping 

Wood  V.  Griffin,  46  N.  H.  234 ;  Don-  changes  made  by  the  Revised  Stat- 

ohuc  V.  McNichol,  Gl  Pa.  St.  73.  iites,  but  lias  since  been    re-enacted 


408  CONVEYANCK. 

fest  tendency  has  been  generally  exhibited  by  the  courts  to 
abridge  rather  than  to  enlarge  the  period  of  inalienability  as 
bein":  better  suited  to  the  nature  of  our  institutions  as  a  free 
as  well  as  a  commercial  people.'  The  effect  of  such  statutes, 
therefore,  has  been  to  reduce  the  scope  of  the  common-law 
rule  with  reference  to  lives  by  allowing  but  two  instead  of 
an  indelinite  number,  and  to  abolish  altogether  the  absolute 
term  of  twenty-one  years,  and  to  allow  in  its  stead  an  actual 
minority.  A  remainder  in  fee,  to  take  effect  after  the  expira- 
tion of  two  lives  in  being,  may  be  created  in  favor  of  a  person 
not  in  being  at  the  time;  and,  it  seems,  in  such  case,  a  further 
contingent  remainder  in  favor  of  a  person  not  in  being  at  the 
creation  of  the  estate  may  be  limited  to  take  effect  in  the  event 
that  the  person  to  whom  the  remainder  is  first  limited  shall 
die  under  the  age  of  twenty-one  years.'-  So  that,  even  under 
statutes  similar  to  those  now  under  consideration,  the  power 
of  alienation  may  lawfully  be  suspended  for  the  term  of  a  mi- 
nority, after  the  expiration  of  two  lives  in  being,  by  means  of 
a  continirent  remainder,  to  take  effect  in  the  event  of  the  death 
of  the  first  remainder-man  in  fee  during  his  minority.'' 

§  11.  Creation  of  life  estate.  The  authorities  are  not  in 
accord  with  respect  to  the  creation  of  life  estates,  nor  in  the 
construction  to  be  placed  upon  the  operative  words  of  pur- 
chase or  limitation  employed  in  conveyances.  The  rule  in 
Shelley's  case  is  frequently  resorted  to  as  an  aid  in  construc- 
tion; yet  as  this  rule  does  not  have  a  uniform  operation  in  all 
of  the  states,  and  is  denied  in  a  few,  it  does  not  furnish  a  safe 
guide,  and  being  at  best  but  a  technical  rule  is  never  allowed 
to  control  a  manifest  and  clear  intent.  In  the  majority  of  the 
states  special  statutes  have  been  enacted  with  reference  to  the 
creation  of  estates  and  the  manner  of  their  conveyance;  and 
while  these  statutes  preserve  a  general  resemblance  to  each 
other  and  operate  mainly  in  a  uniform  manner,  yet  slight  di- 
vergences exist  among  them  all,  and  for  this  reason  the 
reported  cases  are  not  always  reliable  as  rules  unless  the  par- 
ticular statute  to  which  they  refer  or  which  control  their  incli- 
nation are  also  known  and  understood. 

in  other  states  which  have  followed       2  Manice  v.  Manice,  43  N.  Y.  303. 
in  the  New  York  lead.  3  :ilanice  v.  Manice,  43  N.  Y.  303. 

1  Coster   V.     Lorillard,    14    Wend. 
(N.  Y.)  265. 


TIIK    ESTATE    CONVEYED.  409 

A  conve3'ancc  of  land  directly  to  a  woman  and  her  cliildren, 
without  other  words,  she  then  havin^^  children,  will  usually 
have  the  effect  to  vest  the  title  in  her  and  her  children  equally,' 
such  construction  being  in  strict  accordance  with  the  rule  of 
the  common  law  wjjich  jirovidos  tiiat  where  a  conveyance  is 
made  to  two  or  more,  with  no  specilication  of  the  estate  or 
interest  which  each  shall  have,  they  shall  all  share  equally .'-' 
It  would  seem,  however,  that  a  very  slight  indication  of  an 
intention  that  the  children  shall  not  take  jointly  with  the 
mother  will  suffice  to  give  the  estate  to  the  mother  for  life, 
with  remainder  in  fee  to  her  children;*  and  even  though  she 
may  have  no  children  living,  as  if  she  is  unmarried,  she  will 
yet  take  but  an  estate  for  life,  while  a  contingent  remainder 
will  be  created  in  favor  of  her  children,  who  when  born  will 
take  an  absolute  fee.^ 

§  1 2.  Life  tenant  cannot  defeat  estate  of  remainder-man. 
At  common  law  a  conveyance  to  a  person  and  the  heirs  of  his 
body,  whether  generally  or  specially,  created  a  conditional 
fee,  which  was  held  to  be  performed  and  the  fee  vested  upon 
birth  of  issue.  It  was  also  held  that  there  was  an  implied 
condition  that  if  the  donee  should  die  without  such  heirs  he 
land  should  revert  to  the  donor. '^  After  issue  born  the  con- 
ditional estate  became  absolute,  and  the  grantee  might  alien 

•  Hickman    v.     Qiiinn,     6     Yerg.  5  This  was  a  condition   annexed  to 

(Tenn.)  9C;  Loyless  v,  Blackshear,  43  all  grants  by  operation  of  law,  that, 

Ga.  '621 ;  King  v.  Rea,  56  Ind.  1 ;  Bar-  on  failure  of  the  heir  specified  in  the 

ber  V.  Harris,  15  Wend.  (N.  Y.)  615.  grant,  the  grant  should  bo  at  an  end 

2  As  where  a  deed  conveyed  land  and  the  land  return  to  the  ancient 

to  A.  as  trustee  for  his  wife  and  "  her  proprietor.      2  Bl.    Com.    110.     The 

present  heirs;"  held,  that  she  and  condition  annexed  to  these  fees  by 

the  children  that  she  then  had  were  the  common  law  was  held,  where  it* 

tenants    in    common.     Chess-Carley  was  to  a  man  and  the  heirs  of  his 

Co.  V.  Purtell,  74  Ga.  467.  body,  to  be  a  gift  on  condition  that  it 

^Moorev.  Simmons,  2  Head  (Tonn.),  should  revert  to  the  donor  if  the 
506;  Blair  V.  Vanblareum,  71  111.290.  donee  had  no  heirs  of  his  body;  but 
As  where  the  deed  is  to  one  and  "  the  if  lie  had,  that  it  should  remain  to  the 
heirs  of  her  bodi'."  Frazcr  v.  Super-  grantee.  Hence  it  was  called  a  fee- 
visors,  74  111.  282.,  simple  on  condition  that  ho  had  is- 

^  Frazer  V.  Supervisors,  74  111.282.  aue;  and   when  the    condition  was 

The  grantor  in  such  case  thei'eby  de-  performed  by  the  birth  of  issue,  the 

prives  himself  of  all  estate  but  a  con-  estate  in  the  grantee  became  absolute 

tingent  reversion  dependent  upon  the  and  unconditional, 
grantee  dying  without  issue. 


410  CONVEYANCE. 

the  land  SO  as  to  bar  bis  own  issue  and  the  donor.  If  after 
such  performance  of  tbe  condition  tbe  grantee  did  not  alien 
the  land,  and  tbe  heir  died,  then  upon  the  death  of  tbe  grantee 
the  estate  worked  to  tbe  donor,  to  obviate  which  it  was  cus- 
tomary for  the  grantee  on  the  birth  of  issue  to  alien  and  then 
repurchase,  so  that  ho  might  become  vested  with  a  fee-simple 
absolute  that  would  descend  to  his  heirs  generally.'  This  was 
the  state  of  the  law  at  the  time  of  the  adoption  of  the  statute 
de  donis  conditionallhus^  the  effect  of  which  was  to  prevent 
the  grantee  from  aliening  after  birth  of  issue,  so  as  to  cut  off 
or  bar  this  estate,  which  descended  in  like  manner  from  gen- 
eration to  generation  to  the  class  of  heirs  described  in  the 
deed  to  the  first  donee. 

The  spirit  of  the  law  in  the  western  hemisphere  is  and  ever 
has  been  opposed  to  the  tying  up  of  titles  in  perpetuity  by  en- 
tails; and  in  every  state  statutory  modifications  of  the  com- 
mon law  exist,  designed  as  well  for  the  protection  of  the  re- 
version as  for  the  remainders  as  designated  in  the  deed,  and 
at  the  same  time  limiting  the  entail.  Under  these  laws  a  most 
reasonable  middle  course  has  been  adopted,  equally  removed 
from  the  injustice  of  the  old  common  law  or  the  mischievous  ten- 
dency of  the  statute  de  donis.  Under  all  these  statutes  the  heir 
at  birth  takes  an  absolute  estate  in  fee,  while  the  donor  takes 
a  life  estate  at  the  delivery  of  the  deed,  the  fee  remaining  in 
abeyance  if  there  be  no  heir  until  birth  of  issue.  In  this  respect 
there  is  an  important  departure  from  some  of  the  old  canons 
of  the  law;  yet  the  authorities  seem  to  be  united  in  declaring 
that  under  these  statutes  the  estate  in  fee  may  be  in  abeyance 
with  no  particular  estate  to  support  the  remainder,  nor  any 
^person  in  being  to  take  the  inheritance  until  he  comes  into  be- 
ing so  that  it  can  vest.^ 

The  estate  thus  created  cannot  be  defeated  by  the  life  ten- 
ant before  issue  born  by  alienation  to  a  stranger  or  by  a  re- 
conveyance to  the  grantor.^ 

§  13.  Homesteads.  The  general  nature  and  characteristics 
of  homestead  estates  having  already  been  alluded  to  will  not 
receive  further  consideration  in  this  paragraph. 

1 13  Edw.  I.  ch.  1.  3  Fra^er  v.  Supervisors,  etc.  74  111. 

^Frazer  v.  Supervisors,  etc.  74  111.    282. 
283. 


THK    ESTATE   CONVEYED.  411 

As  a  rule  no  operative  words  are  necessary  to  create  a  lionie- 
steacl;  and,  as  this  is  a  matter  wliich  lies  largely  in  intention, 
extraneous  circumstances  are  of  more  importance  than  the 
particular  form  of  conveyance. 

The  right  of  homestead  will  exist  and  attucli  to  almost  any 
kind  of  title  or  interest.  It  has  never  been  considered  neces- 
sary that  the  land  should  be  held  by  an  absolute  fee-simple; 
and,  generalU',  an}'  estate  that  is  vendible  under  an  execution 
will  support  the  homestead  exemption.^  It  has  been  held  to 
apply  to  an  estate  for  life-  as  well  as  to  an  estate  for  years,' 
and  where  the  claimant  is  the  owner  and  in  possession  it  is 
immaterial  in  what  manner  title  may  have  been  derived.* 

The  primary  design  of  the  homestead  laws  being  to  furnish 
a  place  of  refuge  for  the  family,  it  is  wisely  provided  that  the 
liusband  can  do  no  act  that  will  interfere  with  the  occupancy 
liud  use  of  the  homestead  without  the  consent  of  the  wife;  and 
courts,  in  the  construction  of  this  inhibition,  have  in  some 
cases  gone  to  great  lengths  in  declaring  the  purport  of  the 
law.  Xot  only  does  this  apply  to  alienations  of  the  fee,  but 
to  any  lesser  estate  that  can  be  carved  out  of  the  fee;^  and  it 
has  been  held  that  even  the  alienation  or  grant  of  an  ease- 
ment is  void  as  afj^ainst  the  rights  of  the  wife  unless  assented 
to  by  her.*^ 

§  14.  Incidents  to  the  grant  as  connected  with  use  intended. 
It  is  one  of  the  oldest  and  best-settled  principles  of  law  that, 
where  anything  is  granted,  all  the  means  to  attain  it  and  all 
the  fruits  and  effects  of  it  are  granted  also  by  legal  implica- 
tion, and  will  pass  inclusive,  together  with  the  thing,  by  the 
grant  of  the  thing  itself.'     So,  also,  while  a  mere  conveyance 

•  Pilchcr  V.  R.  R.  Co.  38  Kan.  51G.  executed  for  five  years,  but  in  a  later 

2  Deere  v.    Chapman,   25  III.  610;  case  it  is  intimated  that  the  length  of 

Robinson  v.  Smithoj',  80  Ky.  G30.  the  term  of  the  lease  can   make  no 

'  Patton  V.  Deberard,  13  Iowa,  53;  difference.     See  Pilcher  v.  R.  R.  Co. 

Johnson  v.  Richardson,  33  Miss.  462.  38  Kan.  516. 

^Robinson  v.  Smithy,  80  Ky.  636.  «  Pikher  v.  R.  R.  Co.  38  Kan.  516; 

5In  Coughlin  V.  Coughlin,  26  Kan.  but  see  Chicago,   etc.  R.    R.  Co.   v. 

116,  the  court  held  that  *'  the  hus-  Swinney,  38  Iowa,  182. 

band  cannot,  without  the  consent  of  '  Aiken  v.  Boardman,  2  Met.  (Mass.) 

the  wife,  execute  a  lease  of  a  home-  457;  Filch  v.  Johnson,   104  111.  Ill; 

Btead,  and  give  possession  thereof  to  C,  R.  I.  &  P.  R'y  Co.  v.  Smith,  111 

a  tenant."    In  this  case  the  lease  was  111.363. 


412 


CONVEYANCE. 


of  ])art  of  a  tract  of  land  may  not  give  the  grantee  the  right 
to  make  any  use  of  the  part  granted  which  will  injuriously 
affect  the  remaining  portion,  3'et,  when  the  grant  is  expressed 
to  be  for  a  particular  use,  neither  the  grantor  nor  one  claiming 
under  him  can  object  to  such  use  or  recover  damages  resulting 
therefrom.^ 


1  As  where  the  owner  of  a  twenty- 
acre  lot,  being  desirous  of  the  con- 
struction of  a  railroad  over  the  same, 
made  a  deed  to  the  railroad  company, 
reciting  that,  "  in  consideration  of  the 
premises  and  $60,"  he  granted,  "for 
tlie  purpose  of  constructing  a  rail- 
road and  for  all  purposes  connected 
with  the  construction  and  use  of  said 
railroad,"  the  right  of  way  for  the 
same,  one  hundi-ed  feet  wide,  through 
the  lot  and  other  property,  '  to  have, 
hold  and  enjoy  the  land  described, 
with  the  appurtenances,  unto  the 
said  '  grantee,  "audits  assigns,  for- 
ever, for  all  uses  and  purposes,  or  in 


any  way  connected  with  the  construc- 
tion, preservation,  occupation  and 
enjoyment  of  said  raih'oad,"  with  a 
proviso  for  a  reversion  in  case  the 
same  should  cease  to  be  used  for  rail- 
road purposes.  Held,  that  as  the 
casting  of  smoke,  cinders,  ashes, 
sparks  of  fire  and  the  shaking  of  the 
soil  upon  other  parts  of  the  lot  was 
a  necessary  incident  of  the  railroad, 
and  inseparable  from  the  running  of 
traius  thereon,  the  right  to  do  these 
acts  passed  to  the  grantee  and  its  suc- 
cessors by  necessai-y  implication  from 
the  express  grant.  C,  R.  I.  &  P.  R'y 
Co.  V.  Smith,  111  111.  363. 


COVENANTS. 


413 


CHAPTER  XVI. 


THE  COVENANTS. 


§1- 

General  observations. 

S  13 

2. 

Creation  of  covenants. 

14 

3. 

Construction. 

4. 

Inuring  of  title. 

l.~) 

5. 

What  covenants    a  purcha-ser 

16 

has  a  right  to  expect. 

17. 

G. 

Contract  for  conveyance  with 
"  usual  covenants." 

18. 

7. 

Contract  to  convey  with  war- 
ranty. 

19 

8. 

Covenants  limited  to  estate  act- 

20. 

ually  conveyed. 

21. 

9. 

Covenants    running   with    the 

22. 

land. 

23. 

10. 

Effect  and  extent  of    restric- 
tions. 

24. 

11. 

Conveyances  by  attorney. 

25. 

12. 

Covenant  of  seizin. 

Covenant  for  quiet  enjoyment. 

Covenant      against       incum- 
brances. 

Furtlier  assurance. 

Covenant  of  non-claim. 

Covenant  of  warranty. 

Extinguishment  of   the  cove- 
nant. 

Cancellation  of  corresponding 
covenants. 

Implied  covenants. 

Statutory  deeds. 

Where  wife  refuses  to  join. 

Value  of  covenants. 

Defective  covenants  —  Opera- 
tion and  effect. 
Quitclaims. 


§  1.  General  observations.  Covenants  inserted  in  deeds 
are  in  the  nature  of  collateral  promises  of  the  performance 
or  non-performance  of  certain  acts  or  of  agreements  that  a 
given  state  of  things  does  or  shall  or  does  not  or  shall  not 
exist.  WJien  relating  to  title  they  are  inserted  for  the  pur- 
pose of  securing  to  the  grantee  the  benefit  of  the  title  which 
the  grantor  professes  to  convey,  and  as  an  indemnity  against 
any  loss  that  may  arise  in  consequence  of  any  impairment  or 
defect  of  title.  They  are  said  to  be  implied,  as  where  tliey 
are  raised  by  intendment  of  law  from  the  use  of  certain  words, 
and  exj?7'ess,  as  where  the  promise  or  agreement  is  set  forth  in 
explicit  language  declaring  the  intention  of  the  parties. 

The  whole  doctrine  of  covenants  grew  out  of  the  ancient 
doctrine  of  warranty,  which  originaly  was  an  implication  of 
the  feudal  law  binding  the  lord  to  recompense  his  tenant, 
when  evicted  from  his  feud,  with  another  of  equal  value. 
The  term  warranty,  however,  as  it  is  used  in  connection  with 
covenants  of  title  in  this  country,  has  but  little  affinity  with 
the  ancient  remedy,  and  while  the  name  has  been   retained 


414  CONVEYANCE. 

the  present  prevailing  doctrine  seems  to  be  essentially  Ameri- 
can both  in  principle  and  practice.  "There  is  no  evidence," 
says  Mr.  Rawle,  "that  the  covenant  in  such  general  use  in 
this  country,  called  '  the  covenant  of  warranty,'  ever  had  a 
place  in  English  conve3'ancing-."  ' 

The  general  use  of  covenants  for  title  seems  to  have  come 
into  vogue  somewhere  toward  the  close  of  the  seventeenth 
century,  superseding  the  ancient  feudal  warranty;  yet  just  how 
they  came  to  be  introduced,  or  how  they  originated,  are  mat- 
ters which  legal  historians  are  unable  to  determine,  and  the 
accounts  which  have  come  down  to  us  amount  to  little  or 
nothing  more  than  mere  conjectures.-  The  early  covenants 
were  expressed  in  short  and  simple  forms,  and  it  was  not  until 
about  the  time  of  the  restoration  of  Charles  II.  that  they  com- 
menced to  assume  the  form  by  which  they  have  since  been 
known. 

§  2.  Creation  of  covenants.  It  is  fundamental  that  no  par- 
ticular form  or  expression  or  arrangement  of  words  is  neces- 
sary to  create  or  raise  covenants,'  and  that  any  language 
showing  intention  and  manifesting  a  promise  is  sufficient  for 
the  purpose.*  The  artificial  rules  of  conveyancing  have  pre- 
scribed forms,  and  the  law  has  given  specific  and  well-defined 
meanings  to  certain  words  employed  therein;  but  the  liberal 
construction  always  accorded  to  stipulations  of  this  character 

1  Rawle,  Govts.  §  13.  warranty,  in  its  proper  sense,  would 

-  Mr.  Rawle  suggests  the  following  have  been  just  as  inappropriate  as 
as  a  possible  history  of  their  origin :  would  have  been  a  personal  cove- 
"So  Jong  as  livery  of  seizin  was  nant  in  a  deed  of  feoffment,  while 
necessary  to  the  validity  of  the  trans-  the  covenant  was  eminently  fitting, 
fer  of  land,  so  long  did  warranty,  And  hence  it  may  be  that  we 
which  was  essentially  a  covenant  find,  all  through  the  reports  of  the 
real,  accompany  the  deed  of  feoff-  time  of  Elizabeth,  cases  in  whicli 
ment.  A  personal  covenant  would  some  of  the  covenants  for  title  — 
have  been  an  inappropriate  element  generally  a  covenant  for  seizin  or 
of  such  a  form  of  conveyance.  But  of  good  right  to  convey  —  are  used 
the  passage  of  the  statute  of  uses  in  conveyances  taking  effect  by  vir- 
toward  the  latter  part  of  the  reign  of  tue  of  the  statute  of  uses."  Rawle, 
Henry  VIII.  introduced  the  convey-   Govts.  §  13, 

ances  familiar  at  the  present  day,  ^  Jackson  v.  Swart,  20  Johns.  (N. 
which,  taking  their  effect  under  the  Y.)  85 ;  Bull  v.  Follett,  5  Gow.  (N.  Y.) 
statute,  passed  the  freehold  without    170. 

livery  of  seizin;  and  in  a  deed  of  bar-  *  Taylor  v.  Preston,  79  Pa.  St.  436; 
gain  and  sale,  or  lease  and  release,  a   Hallet  v.  Wylie,  3  Johns.  (N.  Y.)  44. 


COVENANTS.  415 

permits  the  obvious  intention  of  the  parties  to  have  effect  re- 
gardless of  the  form  or  pliraseology.^ 

§  3.  Construction.  Covenants  arc  to  i)e  construed  accord- 
ing to  their  spirit  and  intent;-  the}' should  be  considered  in 
connection  with  the  context,  and  must  be  performed  accord- 
ing to  the  intention  of  the  parties  as  derived  from  both.''  Cxen- 
eral  covenants  may  be  restricted  by  sj)ecial  covenants;*  but  the 
general  rule  is  that  all  of  the  covenants  are  to  be  construed, 
as  nearly  as  possible,  accortling  to  the  obvious  intention  of  the 
parties,  which  must  be  gathered  from  the  language  of  the 
whole  instrument,  interpreted  according  to  the  reasonable  sense 
of  words.'  In  case  of  doubt  they  should  be  construed  most 
strongly  against  the  covenantor  and  in  favor  of  the  cove- 
nantee;" but  this  is  permitted  only  as  a  last  resort,  and  when 
the  clause  is  equally  open  to  two  or  more  inconsistent  inter- 
pi'etations. 

§  4.  Inuring  of  title.  By  the  common  law,  if  a  grantor 
who  has  no  interest  or  only  a  defeasible  interest  in  the  prem- 
ises granted  conveys  the  same  with  warranty,  and  afterwards 
obtains  an  absolute  title  to  the  property,  such  title  immedi- 
ately becomes  vested  in  the  grantee  or  his  heirs  or  assigns  by 
operation  of  the  principle  of  estoppel;  '  and  if  the  grantor  or 
any  one  claiming  title  from  him  subsequent  to  such  grant  seeks 
to  recover  the  premises  by  virtue  of  such  after-acquired  title, 
the  original  grantee  or  his  heirs  or  assigns,  by  virtue  of  the 
warranty  which  runs  with  the  title  to  the  land,  may  plead 

•  Johnson  V.  Hollens\voi-th,  48  Mich,  warranty,  held,  that  the  general  cov- 

140;  Wadhngton  v.  Hill,  18  Miss.  560.  enants  in  the  deed  were  restricted  by 

-  Ludlow  V.   McCrea,  1  Wend.  (N.  the  special  covenant  as  to  the  (juan- 

Y.)  328;  Schoenberger  v.  Hoy,  40  Pa.  tity  of  land.     Wiiallon  v.  Kauffman, 

St.  132.  19  Johns.  (X.  Y.)  97. 

3  Marvin  v.   Stone,  2  Cow.  (N.  Y.)  » Wadlington  v.  Hill,  18  Miss.  5C0; 

781 ;  Wadlington  v.  Hill,  18  Miss.  560.  Schoenberger  v.  Hoy,  40  Pa.  St.  132; 

<  As  where  defendant,  after  grant-  Marvin  v.  Stone,  2  Cow.  (N.  Y.)  781. 

ing  a    tract    of  land    described    by  <>Randel  v.  Canal  Co.  1  Har.  (Del.) 

metes  and  bounds,  added,  "contain-  151. 

ing  six  hundred  acres,  and  the  same  ^  Grand  Tower,  etc.  Co.  v.  Gill,  111 

is  hereby  covenanted  and  warranted  111.  541 ;  Lowry  v.  "Williams,  13  Me. 

to    contain    at    least    live    hundred  181 ;  Wark  v.  Willard,  13  N.  H.  389; 

acres,"  and  then  covenanted  gener-  TeiTt   v.  Munson,    57   N.  Y.    99;  Mc- 

ally  that  he  was  seized,  etc.,  being  Cusker  v.  McEvey,  9  K.  I.  533. 
the  usual    general    covenants    with 


410  COXVEYANCE. 

such  warranty  by  way  of  rebutter  o]-  estoppel  as  an  absolute 
bar  to  the  claim.' 

This  principle  has  been  applied  to  all  suits,  brought  b}''  per- 
sons bound  by  the  warranty  or  estoppel,  against  the  grantee  or 
his  heirs  or  assigns,  so  as  to  give  to  the  grantee  and  those 
claiming  under  hira  the  same  right  to  the  premises  as  if  the 
subsequently  acquired  title  or  intei'est  therein  had  been  actu- 
ally vested  in  the  grantor  at  the  time  of  the  original  convey- 
ance from  him. 

The  obligation  created  by  the  estoppel  binds  not  only  the 
party  making  the  covenant,  but  all  persons  privy  to  him, 
whether  of  blood,  law  or  estate;  his  legal  representatives,  his 
heirs,  and  all  who  take  his  estate  by  contract  stand  in  his  stead, 
and  are  subject  to  all  the  consequences  which  accrue  to  him. 
It  adheres  to  the  land,  is  transmitted  with  the  estate,  and  be- 
comes a  muniment  of  title,  so  that  all  who  would  afterwards 
acquire  it  shall  be  bound  by  or  may  take  advantage  of  the 
rights  which  the  existence  of  the  fact  imposes  upon  it.^ 

The  rule  that  where  a  deed  conveys  a  greater  interest  than 
the  grantor  at  the  time  possesses,  an  after-acquired  title  inures 
to  the  benefit  of  his  grantee,  is  subject  to  an  exception  where 
such  grantor  executes  to  his  grantor  a  mortgage  to  secure  a 
part  of  the  purchase  money  on  the  premises  subsequently  con- 
veyed by  the  latter  to  the  former.^ 

§  5.  What  covenants  a  purchaser  has  a  right  to  expect. 
It  would  seem  to  be  a  well  settled  rule  in  England  that  a  pur- 
chaser has  no  right  to  demand  from  his  vendor  covenants  of 
a  greater  scope  than  against  his  own  acts,  and  this  doctrine 
seems  to  have  found  recognition  in  some  of  the  states  of  the 
American  Union.  The  reason  of  the  English  rule  would  seem 
to  be  that  a  man  is  presumed  to  sell  an  estate  as  he  receives 
it,  while  the  purchaser  is  presumed  to  have  made  all  the  nec- 

1  Bank  v,  Mersereau,  3  Barb.  Ch.  purchased  and  received  a  deed  for  the 

(N.  Y.)  528.  premises  fromC,  the  owner,  and  exe- 

^  Hill  V.  West,  8  Ohio,  222;  White  cuted  back  to  him  a  mortgage  thereon 

V.  Patten,  24  Pick.  (Mass.)  324;  Dad-  to  secure    a    part   of  the    purchase 

ley  V.  Cadwell,  19  Conn.  227;  Greene  money,  held,  that  the    rights  of  C. 

V.  Clark,  13  Vt.  158.  under  his  mortgage  were  not  affected 

3  As  where  A.  executed  a  deed  of  bj'  the  prior  conveyance  from  A.  to 

conveyance  of  premises  to  which  he  B,  Morgan  v.  Graham,  35  Iowa,  213. 
Lad  no  title  to  B.,  and  A.  afterward 


COVENANTS.  417 

essary  inquiries  to  satisfy  himself  as  to  the  character  of  the 
estate  and  the  title  by  which  it  is  derived  prior  to  that  time. 
The  obligation  of  the  vendor,  it  is  contended,  is  limited  to 
putting  the  vendee  into  the  same  situation  in  which  he  stood 
himself;  it  is  the  duty  of  the  vendee  to  determine,  by  a  proper 
examination,  what  the  title  of  the  vendor  is,  and  to  satisfy  him- 
self that  the  title  is  good.  Having  done  this  it  rests  with  him 
to  decide  whether  he  will  complete  the  bargain  or  not,  and  if 
he  decides  in  the  aflirniative  the  vendor  makes  a  conveyance 
which  simply  covenants  that  he  has  done  no  act  to  affect  or 
derogate  from  his  title. 

There  has  been  a  tendency  manifested  in  some  of  the  eastern 
states  to  follow  the  English  system  of  conveyancing  in  respect 
to  covenants,  and  restrict  the  purchaser  to  covenants  against  the 
grantor's  own  acts,  and  in  furtherance  of  this  principle  an  agree- 
ment to  convey  by  "  warranty  deed  "  has  been  construed  to  mean 
a  deed  with  "  special  warranty  "  or  a  warranty  against  any  acts 
of  the  vendor  done  or  suffered  and  against  the  acts  of  th  ose  claim- 
ing under  him.'  It  is  to  be  observed,  however,  that  the  states 
in  which  this  doctrine  has  been  recogized  or  adopted  are  few  in 
number,  and  of  that  class  which  has  long  been  ruled  by  Eng- 
lish precedents.  In  the  great  majority  of  the  states  a  contrar}' 
rule  prevails;  and  the  general  American  doctrine  may  be  safely 
stated  as  that,  when  one  makes  a  contract  of  sale  for  his  own 
benefit,  in  the  absence  of  any  special  contract  to  the  contrary, 
there  is  an  implication  from  the  nature  of  the  transaction  that 
he  will  make  a  deed  with  general  warranty.'  The  language 
of  the  agreement  may  sometimes  be  susceptible  of  such  con- 

•  Espy  V.   Anderson,    14  Pa.   312;  setts,  in  Kyle  v.  Kavanagh,  103  Mass. 

Cadwalador  v.    Try  on,    37  Pa.    322.  359. 

Mr.   Raule  states  that  in  the  large  ^  Faircloth  v.    Isler,   713  N.  C.  551 ; 

cities  of  Pennsylvania,   in   ordinary  Allen  v.   Hazen,   26  Mich.    143;  Ho- 

cases,   a  covenant  of  warranty  lini-  back  v.  Kilgore,  26  Gratt.  (Va.)442; 

ited  to  the  acts   of  the  vendor  and  Travenner  v.  Barrett,  21  W.  Va.  656; 

those   claiming   under   him,  and    in  Linn  v.   Barkey,  7   Ind.   70;  Bcthell 

some   instances   carried  back  to  the  v.  Bethell,  92    Ind.  318;    Bowen    v. 

last  person  claiming  by  purchase,  is  Thrall,  28  Vt.  385;  Clark  v.  Lyons, 

the  only  express  covenant  for  title  25  111.  105;  Herrj'ford  v.  Turner,  67 

inserted   in  the  conveyance.     Rawle  Mo.    296;  Taul   v.  Bradford,  20   Tex. 

on   Covenants,  g  29.     Tiiis   rule  has  264:  Witter  v.  Biscoe,   13  Ark.   422; 

also   been   recognized  in   Massachu-  Johnson    v.    Piper,     4     Minn.     195; 

Hedges  v.  Kerr,  4  B.  ]\Ion.  (Ky.)  528. 
27 


418  CONVEYANCE. 

struction  as  to  negative  this  implication,  as  where  some  spe- 
cial title,  or  the  right,  title  and  interest  of  the  vendor,  forms 
the  subject  of  the  sale;  but  as  a  general  rule,  upon  an  agree- 
ment for  the  sale  of  land,  the  vendor,  though  nothing  be  said 
in  the  contract  on  the  subject,  is  considered  as  contracting  for 
a  general  warranty.  This  would  certainly  be  the  case  where 
the  agreement  contains  stipulations  for  title,  and  usually  an 
agreement  to  convey  by  "good  and  sufficient"  deed  will  re- 
ceive a  construction  of  this  character. 

Kor  is  there  anything  harsh,  oppressive  or  unjust  in  this  rule; 
on  the  contrary,  it  is  in  consonance  with  every  principle  of  nat- 
ural justice,  and  in  its  practical  application  tends  to  give  sta- 
bility and  permanence  to  real  estate  titles.  Indeed,  the  very 
fact  that  a  vendor  is  unwilling  to  warrant  the  title  to  the  prop- 
erty he  sells,  or  at  best  is  unwilling  to  do  more  than  covenant 
against  his  own  acts,  is  in  itself  an  imputation  of  discredit,  or, 
as  remarked  by  Story,  J.,  a  significant  circumstance  in  affect- 
ing a  purchaser  with  notice  of  outstanding  equities  or  para- 
mount title.^  At  the  same  time  there  is  much  to  be  said  in 
favor  of  a  contrar}'  rule,  for  the  obligation  to  convey  by  "  good 
and  sufficient  deed  "  imports  nothing  more  than  a  deed  which 
shall  be  effective  to  convey  the  land  with  all  its  incidents  and 
furnish  a  valid  and  unassailable  title.  "Where  a  purchaser  ex- 
pects or  requires  covenants,  such  expectation  or  requirement 
should,  by  strict  analogy  to  the  law  which  dominates  other 
species  of  written  contracts,  be  based  upon  some  positive  stip- 
ulation or  agreement;  for  the  covenants  do  not  constitute  title, 
nor  are  they  in  any  manner  necessary  to  its  proper  devolution. 

§  6.  Contract  for  conveyance  with  "  usual  covenants."  It 
is  not  uncommon  for  parties  to  stipulate  for  conveyance  by 
deed  with  "  usual  covenants,"  "  customary  covenants "  or 
equivalent  expressions.  The  question  then  presents  itself,  What 
are  "  usual  covenants?"  Probably  any  well-settled  local  usage 
might  be  shown  in  such  a  case  to  explain  the  meaning  of  these 
words  and  thereby  afford  a  ground  for  the  interpretation  of 
the  deed.  It  would  seem,  however,  that  in  the  absence  of  any 
such  usage,  or  of  any  attempt  to  rely  on  local  usage,  the  true 
construction  would  be  that  the  purchaser  might  insist  upon  the 

iSee  Oliver  v.  Piatt,  3  How.  (C.  Ct.)  410. 


COVENANTS.  419 

personal  covenants  now  generally  inserted  in  deeds  of  convey- 
ance in  this  country,  viz. :  that  the  grantor  is  lawfully  seized; 
that  he  has  good  right  to  convey;  that  the  land  is  free  from 
incumbrance;  that  the  grantee  shall  quietly  enjoy ;  and  that 
the  frrantor  will  warrant  and  defend  the  title  a;rainst  all  lawful 
claims.'  All  the  authorities  practically  agree  that  all  of  these 
covenants  except  the  last  are  the  usual  covenants  in  a  con- 
veyance of  the  fee.  In  England,  in  lieu  of  the  covenant  for 
warranty,  the  usual  covenant  is  a  covenant  for  further  assur- 
ance;^ but  as  this  covenant  is  seldom  used  in  the  United  States 
it  cannot  with  propriety  be  classed  as  a  "  usual  covenant,"  and 
the  list  is  as  first  stated.^ 

§  7.  Contract  to  convey  with  warranty.  While  it  was  for- 
merly a  very  common  practice  for  parties  to  contract  for  convey- 
ance by  "good  and  sufficient  deed,"  it  is  now  a  more  general 
custom  to  stipulate  for  a  deed  with  warranty;  and  while  there 
are  a  few  decisions  which  hold  that  this  clause  is  satisfied  by 
the  production  of  a  deed  regular  in  form  and  containing  the 
usual  covenant  of  general  warranty,  the  prevailing  doctrine 
would  seem  to  be  that  the  stipulation  is  only  satisfied  by  an 
operative  conveyance,  good  and  sufficient  both  in  form  and 
substance,  and  conveying  a  valid  title  to  the  land  which  the 
covenantor  has  agreed  should  be  conveyed;*  that  the  agree- 
ment is  not  complied  with  by  the  mere  giving  of  a  warranty 
deed,  where  the  grantor  has  no  title  to  the  land  or  where  his 
title  is  imperfect.^ 

But  this  result  follows,  perhaps,  as  much  from  the  general 
rules  of  law  in  respect  to  the  right  of  the  purchaser  to  demand 
a  clear  title  before  parting  with  his  money  as  from  an}^  prin- 
ciple or  rule  of  construction.  Indeed,  it  is  an  admitted  doc- 
trine that  the  right  to  a  clear  and  unimpaired  title  does  not 
grow  out  of  the  agreement  of  the  parties,  but  is  a  guarantied 
legal  right,  and  the  purchaser  may  insist  upon  this  irrespective 

J  4  Kent,  Com.  471.  mon,  13  Me.  270 ;  Luckett  v.  Williain- 

2  2  Sugd.  on  Vend.  701.  son,  31  Mo.  54;  Dodd  v.  Seymour,  21 

3  Wilson  V.  Wood,  2  Greene  (N.  J.  Conn.  480;  Morgan  v.  Smith,  11  111. 
Eq.),  216.  199. 

*  Lewis   V.    Boskins,    27    Ark.    61 ;       3  Everson  v.  Kirtlaud,  4  Paige  (N. 
Haynes  v.  White,  5.T  Cal.  38;  Clark  v.    Y.),  638. 
Craft,  51  Ga.  368;    Brown  v.  Gam- 


420  CONVEYANCE. 

of  any  agreements  for  covenants  unless  by  an  express  stipula- 
tion of  the  contract  such  right  has  been  waived. 

Among  the  earlier  decisions  there  are  a  number  of  authorities, 
emanating  from  courts  of  the  highest  standing,  to  the  effect 
that  a  contract  to  give  a  good  and  sufficient  warranty  deed  of 
the  land  sold  is  to  be  regarded  as  relating  only  to  the  instru- 
ment of  conve3'ance  and  not  to  the  title;  that  the  words 
"good  and  sufficient"  in  such  connection  relate  only  to  the 
validity  of  the  deed  to  pass  the  title  which  the  vendor  has,  and 
that  they  do  not  imply  that  the  vendor's  title  is  valid,  or  that 
it  is  free  from  incumbrances;  that  the  covenant  of  warranty 
was  provided  for  merely  to  guard  against  any  defect  of  title, 
and  that  its  insertion  clearly  shows  that  the  agreement  was  so 
understood  by  the  parties.^ 

It  is  to  be  observed,  however,  that  even  these  decisions  rec- 
ognize the  necessity  of  title  in  the  vendor  whenever  the  agree- 
ments contain  stipulation  for  title,  and  hold,  generally,  that  in 
such  cases  the  contract  is  not  performed  unless  a  good  title  to 
the  land  passes  by  the  deed.  The  general  principle  to  be  col- 
lected from  these  decisions  seems  to  be  that,  when  the  con- 
tract stipulates  for  a  conveyance  of  land  or  estate,  or  for  title 
to  it,  performance  can  be  made  only  by  the  conveyance  of  a 
good  title;  and  when  it  stipulates  only  for  a  deed,  or  for  a 
conveyance  by  a  deed  described,  performance  is  made  by  giv- 
ing such  a  deed  as  the  contract  describes,  however  defective 
the  title  may  be.-  But  these  decisions,  either  expressly  or  in 
effect,  have  all  been  generally  overruled;  and  the  later  and 
better  rule  would  seem  to  be  that,  when  a  man  buys  land  and 
contracts  for  a  conversance  in  general  terms,  the  presumption 
is  that  he  expects  title,  and  his  vendor  is  under  obligations  to 
furnish  him  with  a  perfect  title.'  If  the  contract  provides  for 
a  warranty  deed  the  vendor  is  bound  to  make  a  good  title  to 
the  land,  and  the  purchaser  will  not  be  compelled  to  complete 
his  purchase,  upon  receiving  such  warranty  deed  from  the 
vendor,  when  it  appears  that  the  title  is  not  clear  or  that  the 
land  is  incumbered.* 

1  See  Tinney  v.  Ashley,  15  Pick.  3  Carpenter  v.  Bailey,  17  Wend. 
(Mass.)  546;    Parker  v.   Parmlee,  20   (N.  Y.)  244. 

.Tolms.  (N.  Y.)  130.  ^  See  Mead  v.  Fox.  6  Cush.  (Mass.) 

2  Hill  V.  Hobart,  16  Me.  164;  Aiken  199;  Stow  v.  Stevens,  7  Vt.  27;  Little 
V.  Sanford,  5  Mass.  294.  v.  Paddleford,  13  N.  H.  167;  Story  v. 


COVENANTS.  421 

It  is  also  held  that  an  agreement  to  convey  with  warrant}' 
contemplates  a  conveyance  from  the  vendor  himself  and  not 
from  a  third  person,  and  that,  under  such  an  agreement,  tlie 
vendee  will  not  be  compelled  to  accept  a  deed  made  by  a  third 
party  who  in  fact  possesses  the  title;  but  it  seems  that  such 
an  agreement  is  sufficiently  performed  where  the  vendor,  hav- 
ing only  an  ecjuitablo  title,  procures  the  person  having  the 
legal  title  to  convey  to  the  vendee,  and  thereuj)on  executes 
a  deed  with  warranty  himself.^ 

§  8.  Covenants  limited  to  estate  aetnally  conveyed.  Xo 
rule  is  better  established  or  more  generally  recognized  than 
that  which  provides  that  the  estate  granted  by  a  deed  is 
neither  enlarged  nor  restricted  by  the  covenants  for  title 
therein  contained,  w^hether  express  or  implied.-  Such  cove- 
nants are  but  simple  assurances  of  the  title.  If  the  grantee 
takes  but  a  life  estate,  the  covenants  assure  that  estate;'  if 
he  takes  the  fee,  but  subject  to  an  incumbrance  thereon,  the 
covenants  of  warranty  of  title  and  against  incumbrances  will 
extend  only  to  the  estate  actually  conveyed,  which  is  practi- 
cally an  equity  of  redemption.* 

§  9.  Covenants  running  with  the  hmd.  A  covenant  runs 
with  the  land  when  either  the  liability  for  its  performance  or 
the  right  to  enforce  it  passes  to  the  assignee  of  the  land  itself; ' 
but  in  order  that  the  covenant  may  run  with  the  land,  its  per- 
formance or  non-performance  must  affect  the  nature,  quality 
or  value  of  the  ])ropcrty  demised  independently  of  collateral 
circumstances,'^  or  it  must  affect  the  mode  of  enjoyment,  and 
there  must  be  a  privity  between  the  contracting  parties.'' 

Conger,  36  N.  Y.  673;  Taft  v.  Kessel,  to  the  estate  conveyed,  which  was 

16  Wis.  273.  not  the  lots  absolutely,  but  subject 

1  Burnett  V.Morrison,  2  Litt.(Ky.)71.  to  the  incumbrances,  and  that   th(3 

2  Lehndorf  V.  Cope,  122  III.  317.  real  covenant  was  that,  otherwise 
SLehndorf  V.  Cope,  122  111.  317.  than  subject  to  incumbrances  named, 
^  A  deed  for  lots,  after  the  descrip-  the  lots  were  free  from  all  iiicum- 

tion,  contained  the  following  clause:  brances,  and  the  grantor  would  war- 

"  subject  to    the   following    mcum-  rant  and  defend  the  title.     Drury  v. 

brances  on  said  described  premises,"  Holden,  121  III.  130. 

describing    them;   after   which    fol-  ^Dorsey  v.  R.   R.   Co.    5S  111.   65; 

lowed  full  covenants  of  warranty  of  Brown  v.  Staples,  28  Me.  497;  Clarke 

title,  and  that  the  premises  conveyed  v.  Swift,  3  Met.  (Mass.)  390. 

were  free  and  clear  from  all  incum-  •'  Norman     v.    Wells,     17     Wend. 

brances,    containing    no   exceptions.  (N.  Y.)  136. 

B^eZd,  that  the  covenants  applied  only  ^  Wiggins  v.   R'y  Co.   94    111.   83; 


422  CONVETANOE. 

As  a  rule,  all  covenants  which  relate  to  and  are  for  its  bene- 
fit run  vvitli  the  land,  and  may  be  enforced  by  each  successive 
assignee  into  whose  hands  it  may  come  by  conveyance  or  as- 
signment.^ AVhere,  however,  the  covenant  relates  to  matters 
collateral  to  the  land,  its  obligation  will  be  confined  strictly 
to  the  original  parties  to  the  agreement.-  So,  too,  there  is  a 
wide  difference  between  the  transfer  of  the  burden  of  a  cove- 
nant running  with  the  land  and  of  the  benefit  of  the  cove- 
nant; or,  in  other  words,  of  the  liability  to  fulfill  the  covenant 
and  of  the  right  to  exact  its  fulfillment.  The  benefit  will  pass 
Avith  the  land  to  which  it  is  incident,  but  the  burden  or  liability 
will  be  confined  to  the  original  covenantor,  unless  the  relation 
of  privity  of  estate  or  tenure  exists  or  is  created  between  the 
covenantor  and  the  covenantee  at  the  time  when  the  covenant 
was  made.'  This  naturally  follows  from  the  principle  that 
the  obligation  of  all  contracts  is  ordinarily  limited  to  those  by 
whom  they  are  made,  and  if  privity  of  contract  be  dispensed 
with,  its  absence  must  be  supplied  by  privity  of  estate. 

Where  a  covenant  is  not  of  such  a  nature  that  the  law  per- 
mits it  to  be  attached  to  the  estate  as  a  covenant  running  with, 
the  land,  it  cannot  be  made  such  by  agreement  of  the  parties.* 

It  is  a  further  rule  that  covenants  will  run  with  incorporeal 
as  well  as  corporeal  hereditaments.* 

Norcros3  v.  James,    140  Mass.    188.  Robinson.  6  Vt.  276;  Easter  v.  R.  R. 

When  the  relation  of  tenure  is  ere-  Co.  14  Oliio  St.  48;  St.  Louis,  etc.  R. 

ated  by  a  grant,  all  the  covenants  of  E.  Co.  v.  Mitcliell,  47  111,  105.    A  cove- 

the  grantee  for  himself  and  his  as-  nant  not  to  establish  another  mill-site 

signs  which  affect  the  land  granted  on  the  same  stream  has  been  held  to 

will  be  a  charge  upon  it   and  bind  have  this  effect.  Norman  v.  Wells,  17 

every  one  to  whom   it    may  subse-  Wend.  (N.  Y.)  36.    Or  to  engage  in  of- 

quently  come  by  assignment.     Wig-  fensive    trades   upon    the  premises. 

gins  V.  R'y  Co.  94  111.  83.  Barron  v.  Richard,  3  Edw.   Ch.  (N. 

'Sterling  Hydraulic  Co.   v.  Will-  Y.)  96. 

iams,  66  lU.  393.     In  several  of  the  2  Gibson   v,    Holden,    115  111.    199; 

states  it  has  been  held  that  a  cove-  Parish  v.  Whitney,  3  Gray  (Mass.), 

nant  to  erect  and  maintain  a  parti-  516. 

tion  fence,  where  there  is  privity  of  ^  Cole  v.  Hughes,  54  N.  Y.  444;  Weld 

estate   existing    between    the    cove-  v.  Nichols,  17  Pick.  (Mass.)  543;  and 

nantor  and  covenantee,  or  is  created  see  Hurd  v.  Curtis,  19  Pick.  (Mass.); 

at  the  time  of  making  the  covenant,  Harsha  v.  Reid,  45  N.  Y.  415. 

runs  with  the  land,  and  is  binding  ^  Gibson  v.  Holden,  115  111.  199. 

upon  subsequent  grantees.    See  Bron-  'Fitch  v.  Johnson,  104  111.  Ill ;  Van 

son  V.  Coffin,  108  Mass.  175;  Hazlett  Rensselaer  v.    Read,  26  N.  Y.    558; 

V.  Sinclair,  76  Ind.  488;  Kellogg  v.  Hazlett  v.  Sinclair,  76  Ind.  448;  but 


COVENANTS.  423 

The  covenant  of  warranty  is  always  held  to  bo  prospective, 
and  to  be  unbroken  until  eviction.  This  covenant,  therefore, 
always  runs  with  the  land  for  the  benefit  of  any  and  all  suc- 
cessive grantees.'  The  same  is  true  of  the  covenant  for  quiet 
enjoyment;  and  while  covenants  for  seizin  and  against  incum- 
brances are  generally  held  to  be  in  preseiiti,  and  broken,  if  at 
all,  at  the  time  they  are  made,  and  hence  becoming  mere 
choses  in  action  enforceable  only  by  the  original  covenantee;"'* 
yet  in  some  of  the  states  it  is  held  that  they  too  run  with  the 
land  so  far  as  to  permit  an  action  to  the  particular  successive 
grantee  on  whom  the  damage  occasioned  by  their  breach  act- 
ually falls.' 

In  estates  not  of  inheritance  or  less  than  the  fee,  all  cove- 
nants which  come  within  the  general  rules  first  mentioned  are 
deemed  to  run  with  the  land.  Thus,  a  covenant  to  repair*  is 
rcfrarded  as  a  continuing  covenant. 

§  10.  Effect  and  extent  of  restrictions.  Notwithstanding 
that  the  covenants  are  themselves  general  and  unlimited,  their 
effect  and  operation  may  be  restrained  by  an  agreement  of  the 
parties  inserted  in  the  deed,  or  by  special  covenants  in  respect 
to  the  land,  estate  or  title. 

It  would  seem,  however,  that  a  special  exception  or  restric- 
tion annexed  to  one  covenant  will  not  have  the  effect  to  qualify 
the  others;'^  and  that  it  is  only  when  the  words  of  exception 
or  qualification  are  not  annexed  to  any  one  of  the  covenants, 
hut  are  part  of  the  description  of  the  premises  granted,  that 
they  apply  to  all  of  the  covenants  alike.^  As,  where  a  cove- 
nant against  incumbrances  except  a  certain  mortgage  pre- 
cedes a  general  covenant  of  warranty  without  exception  or 

see  Mitchell  v.  Warner,  5  Conn.  497;  Cole  v.  Kimball,  52  Vt.  639;  Knadler 

Wheelock  v.  Thayer,  16  Pick.  (j\lass.)  v.  Sliarp,  26  Iowa,  2.32.     In   Massa- 

68.  chusetts  and  Maine  this  is  made  so 

1  Chase   v.  Weston,  12  N.  H.   413;  by  statute.     The  matter  will  receive 

Mitchell   V.    Warner,   5    Conn.    497 ;  further  treatment  in  that  part  of  the 

Flaniken  v.  Neal,  67  Tex.  629 ;  Mont-  work  relating  to  damages, 

gomery  v.  Reed,  69  Me.  510;  Wynian  '•Demarest  v.  Willard,  8  Cow.  (N. 

V.  Ballard,  12  Mass.  306.  Y.)  206. 

2 Blondeau  V.  Sheridan,  81  Mo.  515;  ^Eastabrook     v.    Smith,    6     Gray 

Davenport   v.   Davenport,    52    Mich.  (Mass.),  572;    Freeman  v.  Fo.'^ter,  65 

587 ;  Real  v.  Hollister,  20  Neb.  112.  Me.  508. 

3  See  Allen  v.  Kennedy,  91  Mo.  324 ;  «  Freeman  v.  Foster,  55  Me.  508. 


424  CONVEYANCE. 

qualification,  the  mortgage,  it  is  held,  will  not  be  excepted 
from  such  covenant  of  warranty.^  So,  also,  if  covenants  of 
warranty  are  introduced,  but  with  restrictive  words  confining 
their  operation  to  the  covenantor's  own  acts,  and  a  general 
covenant  for  quiet  enjoyment  is  also  made  with  no  qualifying 
words,  the  covenant  for  quiet  enjoyment  will  not,  it  seems,  be 
restrained  by  the  words  of  restriction  applied  to  the  other 
covenants,  for  the  reason  that  this  covenant  is  distinct  from 
the  covenant  of  title,  and  a  man  may  not  choose  to  guaranty 
his  title  generalh',  and  yet  may  readily  undertake  that  the 
possession  shall  not  be  disturbed.^ 

"Where  restrictive  words  are  inserted  in  the  first  of  several 
covenants  having  the  same  object,  they  will  be  construed  as 
extending  to  all  the  covenants,  although  they  are  distinct.' 
But  where  the  first  covenant  is  general,  a  subsequent  limited 
covenant  will  not  restrain  the  generality  of  the  preceding 
covenant,  unless  an  express  intention  to  do  so  appear,  or  the 
covenants  be  inconsistent,  or  unless  there  appear  something  to 
connect  the  general  covenant  with  the  restrictive  covenant,  or 
unless  there  are  words  in  the  covenant  itself  amounting  to  a 
qualification.  And  as,  on  the  one  hand,  a  subsequent  limited 
covenant  does  not  restrain  a  preceding  general  covenant,  so, 
on  the  other,  a  preceding  general  covenant  will  not  enlarge  a 
subsequent  limited  covenant. 

§11.  Conveyances  Iby  attorney.  It  would  seem  to  have 
been  formerly  held,  where  an  attorney  in  fact  was  authorized 
to  sell  land  and  executed  conveyance  thereof,  but  no  author- 
ity was  given  to  bind  the  principal  by  covenants,  that  no 
covenants  could  be  demanded  by  the  purchaser.  The  theory 
upon  which  these  cases  proceeded  was  that  a  conveyance 
or  assurance  is  good  and  perfect  without  either  warranty  or 
personal  covenants,  and  therefore  they  are  not  necessarily  im- 

1  Sumner  V.  Williams,  8  Mass.  202.    of  quiet  enjoyment  are  practically 

2  This  is  the  doctrine  of  the  Eng-   the  same. 

lish  cases  (see  2  Sugd.  on  Vend.  281,  'Sumner  v.  Williams,  8  Mass.  202. 

and  cases  cited),  and  which  has  been  But  where  the  covenants  are  of  divers 

approved    by    American    decisions,  natures  and  concern  different  things. 

See    Eastabrook    v.   Smith,   6   Gray  restrictive  words  added  to  one  will 

(Mass.),    572.      But    in    the    United  not  control  the  generality  of  the  oth- 

States  the  covenant  of  warranty  and  ers,  although  they  all  relate  to  the 

same  land. 


COVENANTS.  425 

plied  in  an  :iutliorit\^  to  convey;  that  such  autliority  is  to  l)e 
strictly  construed,  and  any  act  varying  in  substance  from  it  is 
void.'  15ut  this  doctrine  has  long  since  been  denied;  and,  as 
the  right  of  the  purchaser  to  covenants  of  title  from  his  grantor 
is  now  unquestioned,  so  the  law  will  not  permit  this  right  to 
be  defeated  simply  because  the  grantor  has  delegated  to  a 
third  person  a  ministerial  authority  to  consummate  the  con- 
tract.- 

§  12.  Covenant  of  seizin.  The  first  of  the  five  covenants 
usually  inserted  in  deeds  of  coiive3'ance  is  that  the  grantor  is 
well  seized  of  the  premises  conveyed  and  has  good  right  to 
convey  same.  This  is  called  the  cov^enant  of  seizin.  It  is  a 
covenant  in  jpresenti^  and  broken,  if  at  all,  when  the  deed  is 
delivered.  Nothing  arising  after  delivery  can  be  assigned  as 
a  breach.^  If  the  grantor  is  not  well  seized,  or  if  he  has  not 
the  power  to  convey  at  the  time  of  delivery  of  the  deed,  an 
action  at  once  accrues,  and  a  recovery  may  be  had.'* 

The  covenant  of  seizin  extends  to  all  titles  existinir  in  third 
persons  which  may  defeat  the  estate  granted  by  the  cove- 
nantor, but  not  to  a  title  set  up  by  the  grantee,  the  vendee 
being  estopi)ed  from  setting  up  a  previously-acquired  title  to 
defeat  his  vendor.^ 

The  exact  scope  of  this  covenant  does  not  seem  to  be  well 
defined  in  this  country,  nor  is  it  permitted  to  have  the  same 
effect  in  all  of  the  states.  In  Massachusetts  and  the  states 
which  have  followed  the  construction  which  there  obtains 
these  covenants  do  not  express  or  imply  a  warranty  of  any 
absolute  title;  they  relate  to  the  actual  seizin  of  the  grantor, 
aiul  that  he  has  such  possession  of  the  premises  as  that  he 
may  execute  a  deed  thereof.^  On  the  other  hand,  the  expres- 
sions that  the  grantor  is  well  seized  of  the  land  conveyed  and 
has  good  right  to  convey,  or  those  of  similar  import,  are  con- 
sidered in  many  states  as  amounting  to  a  covenant  of  title.' 

iSee  Nixon  v.  Hyscrott,  5  Johns.  ^King  v,  Gilson.  32  II'.  34S. 

(N.  Y.)  58;  Meat!  v.  Johnson,  3  Conn.  s  Furness  v.  Williams,  11  III.  229. 

593.  ''Ka}Mnoncl   v.  Raymond,  10   ^lasrs. 

2 Ward  V.    Baitholomow,   G   Pick.  134;    and  see   Backus   v.    McCoy,  3 

(Mass.)  410;  Bronson  v.   Coffin,    118  Ohio.  211;  Boothby  v.  Hathaway,  20 

Mass.  161 ;  Vanda  V.  Hopkins,  1  J.  J.  Me.    255;    Watts  v.    Parker,    27  Dl. 

Marsh.  (Ky.)  293.  229. 

3 Jones  V.Warner,  Sim.  313;  Mes-  "Richardson    v.    Dorr,    5    Vt.    21; 

6er  V.  Oestreich,  52  Wis.  G84.  Lock  wood   v.    Sturdevant,    G    Conn. 


426  OONVEYANOB. 

§  13.  Covenant  for  qniet  enjoyment.  This  covenant  goes 
only  to  the  ])ossessioii  and  not  to  the  title,'  and  does  not  ex- 
tend so  far  as  the  covenant  of  warranty.  It  is  broken  only  by 
an  entry,  or  lawful  expulsion  from,  or  some  actual  disturbance 
in,  the  possession.^  It  requires  no  precise  or  technical  lan- 
guage to  raise  it,  and  will  be  created  by  any  words  which 
amount  to  or  import  an  agreement  to  that  effect.'  In  its  prac- 
tical operation  it  is  prospective,  runs  with  the  land,  descends 
to  heirs,  and  vests  in  assignees  and  purchasers. 

It  is  regarded  as  one  of  the  five  covenants  to  which  a  pur- 
chaser is  entitled  under  a  contract  for  a  deed  with  covenants; 
and  notwithstanding  that  the  covenant  of  general  warranty  is 
in  effect  a  covenant  for  quiet  enjoyment,  it  is  customary  to 
specifically  insert  this  covenant  as  well. 

§14.  Covenant  against  incumlbrances.  Among  the  "usual 
covenants  "  which  a  purchaser  has  a  right  to  demand  is  that 
against  incumbrances,  or  an}"  right  or  interest  in  the  land 
which  may  subsist  in  third  persons  to  the  diminution  of  the 
value  of  the  land,  but  consistent  with  the  passing  of  the  fee 
by  conveyance.  In  its  operation  it  is  practically  a  covenant 
for  indemnity.  It  is  considered  to  be  in  presenti,  and  broken, 
if  at  all,  as  soon  as  made.* 

A  vendor  who  desires  to  avoid  the  effect  of  this  covenant 
should,  for  his  own  protection,  specially  and  expressly  except 
from  its  operation  all  known  incumbrances  of  every  kind;  for, 
by  the  ruling  of  recent  decisions,  an  incumbrance  is  not  only 
such  matters  as  merely  affect  the  title,  but  includes  many 
things  that  affect  only  the  physical  condition  of  the  property 

385 ;  Parker  v.  Brown,  15  N.  H.  186.  upon  the   policy  of   preventing  any 

And  see  Ravvle  on  Govts.  §  45  et  seq.,  connivance  between  the  grantee  and 

for  a  discussion  of  the  subject.  a  stranger  without  title  for  the  pur- 

1  Beebe  v.  Swartwout,  3  Gilm.  (111.)  pose  of  recovering  damages  from  the 
162.  grantor,  and  also  upon  the  consider- 

2  This  covenant  was  formerly  held  ation  that  one  wrongfully  disturbed 
to  embrace  wrongful  as  well  as  law-  lias  a  remedy  against  the  wrong- 
ful evictions  by  third  persons.     But  doer. 

it  is  now  well  settled  that  a  covenant  *Midgett  v.  Brooks,  13  Ired.  (N.  C.) 

for  title  gives  the  grantee  a  claim  145. 

against  the  grantor  only  where  the  *  For  a  further  discussion  of  this 

former  is  disturbed  by  one  having  a  subject  with  reference  to  breach  and 

good  adverse  claim,  unless  tortious  damages,  see  "Actions  for  Damages," 

evictions    are    included    by   express  infra. 

words.      This    principle    is  founded 


COVENANTS.  427 

as  well.  Tiie  fact  that  such  incumbrances  are  known  to  the 
vendee  in  ng  way  afTects  the  liability  of  the  vendor  or  impairs 
the  vendee's  right  to  recover,  the  question  of  notice  in  such 
cases  being  immaterial.' 

§  15.  Further  assurance.  In  addition  to  the  familiar  cove- 
nants to  which  allusion  has  already  been  made  liierc  are  others 
of  primary'  importance  to  intending  purchasers,  and  to  which 
they  are  frequently  entitled.  The  chief  of  these  less  known 
covenants  is  that  called  a  covenant  for  further  assurance, 
which  relates  both  to  the  title  of  the  vendor  and  to  the  instru- 
ment of  conveyance,  and  operates  as  well  to  secure  the  per- 
formance of  all  acts  necessary  for  supply- ing  any  defect  in  the 
former  as  to  remove  all  objections  to  the  sufficiency  and  secu- 
rity of  the  latter.  It  is  less  extensively  used  in  the  United 
States  than  any  of  the  other  covenants  for  title;  but  this 
would  seem,  says  Mr.  Rawle,  '*  to  be  owing  rather  to  custom 
and  the  inartificial  character  of  early  conveyances  than  to  any 
want  of  usefulness  in  the  covenant  itself  or  difficulty  as  to  its 
application."  2 

The  covenant  is  practically  an  undertaking  on  the  part  of 
the  vendor  to  do  such  further  acts  for  the  purpose  of  perfect- 
ing the  purchaser's  title  as  the  latter  may  reasonabl}'  require. 
In  the  interpretation  of  this  covenant  due  regard  must  be  had 
to  the  character  of  the  estate  conveyed  —  its  quantity,  quality 
and  extent  —  and  the  covenants  which  accompan}''  it.  If  these 
latter  are  general,  with  no  limitations  or  restrictions,  the  pur- 
chaser has  a  right,  under  the  covenant  for  further  assurance, 
to  require  the  conveyance  of  a  paramount  title  or  the  removal 
of  an  outstanding  incumbrance;  but  if  the  estate  conveyed  be 
limited  and  the  expressed  covenants  are  restrained  to  some 
particular  interest  or  estate,  the  purchaser  cannot  by  virtue 
of  his  covenant  for  further  assurance  require  the  conveyance 
to  himself  of  any  other  or  greater  estate,  or  the  removal  of 
incumbrances  not  created  by  the  vendor.^  The  utmost  limits 
to  which  courts  have  gone  has  been  to  extend  the  operation 

1  Hubbard  V.  Norton,  10  Conn,  431 ;   137  Mass.  151;  Williamson  v.  Holt, 
Snyder  v.  Lane,  10  Ind.  424;  Smith  v.    62  Mo.  405. 
Lloyd,  29  Mich.  382;  Worthington  v.        2R;xu1o  on  Govts,  g  98. 
Curd,  22  Ark.  285;  Ladd  v.  Noyes,       sSee  Armstrong  v.  Darby,  20  Mo. 

517. 


428  CONVEYANCE. 

of  the   covenant  to  the  very  estate  or  interest  conve3^ed  by  the 
deed.i 

The  further  assurance  must  in  all  cases  be  reasonable,  and 
conform  to  the  nature  and  purport  of  the  original  bargain.- 

§  1 6.  Covenant  of  non-claim.  It  was  formerly  a  custom  to 
insert  in  deeds  of  limited  warranty  a  clause,  or,  as  it  was  some- 
times called,  a  covenant,  of  "  non-claim."  This,  in  the  original 
form,  was  inserted  immediately  after  the  habendum,  without 
the  usual  words  of  covenant  being  prefixed,  and  purported  to 
be  a  denial  of  any  further  rights  in  the  grantor  in  relation  to 
the  property  conveyed.  It  might  be  general,  but  was  usually 
limited  to  the  grantor  or  those  claiming  under  him.'  In  prac- 
tice the  covenant  of  non-claim  is  now  seldom  employed,  having 
been  superseded  by  the  grantor's  personal  covenant  against 
his  own  acts. 

The  legal  effect  of  the  covenant  of  non-claim  has  not  always 
received  a  uniform  interpretation,  and  in  an  earl}' case  *  was 
held  to  be  a  covenant  real,  which  runs  with  the  land  and  es- 
tops the  grantor  and  his  heirs  to  make  any  claim  or  set  up  any 
title  thereto ;  and  such  would  certainly  be  its  effect  in  its  pres- 
ent modernized  character  of  special  warrant3^  The  volume  of 
authority,  however,  does  not  sustain  this  doctrine  where  the  cov- 
enant retains  its  original  form,  i.  <?.,  a  simple  denial  of  further 
rights.  In  this  shape  it  makes  no  assertion  of  title,  and  at  best 
can  onl}-  be  considered  as  an  engagement  respecting  future 
conduct.  In  legal  effect  it  is  not  distinguishable  from  an  ordi- 
nary quitclaim,  of  which  it  is  indeed  a  form;  and  while  it  is 
operative  to  pass  all  present  interest,  and  to  that  extent  is 
binding  upon  the  grantor  and  those  in  privity  with  him,  yet, 

1  The  covenants  generally  can  only  common  form  of  this  covenant: 
extend  to  the  estate  granted,  and  "  So  that  neither  I,  the  said  (grantor), 
there  must  be  something  very  pecul-  nor  my  lieirs  or  any  other  person  or 
iar  in  their  terms  to  warrant  such  a  pei'sons  claiming  from  or  under  me 
construction  of  them  as  to  enlarge  or  them,  or  in  the  name,  right  or 
the  estate  granted  in  the  premises,  stead  of  me  or  them,  shall  or  will  by 
Corbin  v.  Ilealy,  20  Pick.  (]\Iass.)  any  way  or  means  have,  claim  or 
514.  demand   any  right    or    title  to   the 

2  Miller  V.  Parsons,  9  Johns.  (N.  Y.)  aforesaid  premises,  or  any  part  or 
336.  parcel  thereof  forever." 

3  See  Rawle  on  Covenants  for  Title,  ^  Fairbanks  v.  Fairbanks,  7  Greenl. 
p.  223,  3d  ed.     The  following  was  a  (Me.)  96. 


COVENANTS.  429 

since  it  contains  no  warranty  of  title,  it  is  insufficient  to  convey 
any  after-acquired  title,  or  to  estop  the  grantor  from  the  asser- 
tion of  a  title  subsc(jUcuLly  acquired,  unless  by  so  doin^j  he  is 
obli<^ed  to  deny  or  contradict  some  fact  in  addition  thereto 
alleged  in  his  former  conveyance.^ 

§  17-  Covenant  of  warranty.  The  last  and  most  extensive 
of  all  the  covenants  is  the  covenant  of  general  warranty.  This 
covenant  is  i)rospective,  and  is  understood  to  be  broken  onl}' 
upon  an  eviction,  or  by  something  equivalent  thereto.^  It 
runs  forever  with  the  land  into  the  hands  of  all  those  to  whom 
it  may  subse(|uently  come  either  by  descent  or  purchase.'  This 
is  the  most  important  of  all  the  covenants  that  the  purchaser 
can  demand,  and  the  one  of  all  others  that  he  should  insist 
upon  having. 

§  18.  Continued  ^Extingnislinient  of  the  covenant.  AVhile 
a  covenant  of  warranty  runs  forever  with  the  land  into  the 
hands  of  all  those  to  whom  it  may  come  either  by  purchase 
or  descent,  yet  where  a  grantor  of  land  whose  deed  contained 
a  covenant  of  warranty  before  any  breach  of  his  covenant 
becomes  re-invested  with  the  seizin  which  he  conveyed,  and 
which  he  covenanted  to  warrant  and  defend,  his  obligation  in 
that  regard  becomes  extinguished.  The  estate  granted  by  him 
ceases  upon  the  reconveyance,  and  the  covenant  attendant  upon 
the  estate,  and  which  is  only  co-extensive  with  it,  is  extin- 
guished when  the  estate  ceases.'* 

§  19.  Cancellation  of  corresponding  covenants.  Where, 
after  a  conveyance  with  covenants,  the  same  premises  are  re- 
conveyed  to  the  grantor  b}^  his  grantee  with  like  covenants, 
the  law  construes  such  covenants  as  mutually  canceling  each 
other,  so  that  no  action  can  be  maintained  on  them  by  either 
of  the  parties  or  their  assignees.'' 

1  Partridge  v.  Patten,  33  Me.  483;  with  covenants  against  incumbrances 

Kimball   v.    Blaisdell,  5  N.  H.  533;  and  warranty,  and  B.  subsequently 

Blanchard  v.  Books,  12  Pick.  (Mass.)  reconveys  to  A.  with  like  covenants, 

47;  Dart  V.  Dart,  7  Conn.  250.  the    several    conveyances    between 

^Clayconib  v.  Munger,  51   111,  373;  them  will  by  operation  of  law  cancel 

Caldwell  v.  Kirkpatrick,  6  Ala.  62;  or  extinguish  the  covenants  in  B.'s 

Reed  v.  Hatcli,  55  N.  II.  336,  deed  as  to  all   incumbraricos  covt-red 

^ Brady  v.  Spurck,  27  111.  478.  by  A.'s  deed  to  B.,  to  avoid  circuity 

i  Brown  v.  Motz,  33  111.  339.  of  action.     Silverman  v.  Loomis,  104 

5  As  where  A.  conveys  land  to  B.  111.  137. 
upon  which  there  is  an  incumbrance, 


430  CONVEYANCE. 

§  20.  Implied  covenants.  Implied  covenants,  or,  as  they 
are  also  termed,  covenants  in  law,  are  those  which  the  law  im- 
plies or  infers  from  the  nature  of  the  transaction,  although 
not  expressed  by  words  in  the  instrument  containing  them. 
They  are  raised  by  the  employment  of  certain  words  having 
a  known  legal  operation  in  the  creation  of  an  estate,  and  are 
a  secondary  force,  as  it  were,  given  by  law,  constituting  an 
agreement  on  the  part  of  the  grantor  to  protect  and  preserve 
the  estate  so  by  those  words  already  created.  In  their  origin 
they  are  distinctly  traceable  to  the  feudal  constitutions,  and 
grew  out  of  the  reciprocal  relations  of  the  feudal  lord  and  his 
tenant.^  The  covenant  or  promise  was  raised  from  the  w^ords 
of  grant,  the  fact  of  feoffment  carrying  with  it  the  correlative 
duty  of  protection,  and  this  principle  has  been  retained  and 
forms  the  basis  upon  which  the  implied  covenants  rest  where- 
ever  they  are  permitted  to  obtain. 

The  strong  tendency  of  modern  times  has  been  to  limit  and 
restrict  the  operation  of  covenants  implied  from  the  use  of 
words  of  grant.  In  many  states  they  have  been  expressly 
abrogated  by  statute,-  and  in  the  other  states  receive  their 
main  efficacy  from  statutory  provisions.  The  employment  in 
a  deed  of  the  words  "grant,  bargain  and  sell,"  as  the  equiva- 
lent of  the  ancient  expression  "  decU,  concessi,  deinisi^''  etc., 
have,  by  statute  in  the  states  which  still  recognize  implied  cove- 
nants, been  declared  to  be  an  express  covenant  to  the  grantee 
that  the  grantor  was  seized  of  an  indefeasible  estate  in  fee- 
simple,  free  from  incumbrances  done  or  suffered  from  the 
grantor,  and  for  quiet  enjoyment  against  the  grantor,  his  heirs 
and  assigns,  unless  limited  by  express  words  contained  in  such 
deed;  and  the  grantee  may  in  any  action  assign  breaches  as  if 
such  covenants  were  expressly  inserted.' 

i"The  lord  was  bound,"  observes  ^guch  is  the  case  in  New  York, 

Mr.  Rawle.  "to  warrantor  insure  the  Michigan,  Minnesota,  Oregon,  Wis- 

fief  against  all  persons  whomsoever  consin  and  Wyoming, 

claiming  b}-  title,  and  in  case  of  loss  '*  A  substantial  transcript  of    the 

to  replace  it  with  another ;  and  when  statutes  in  force  in  Illinois,  Pennsyl- 

later  it  became  usual  to  authenticate  vania,  Arkansas,  Alabama, California, 

the  creation  or  transfer  of  estates  by  Mississippi,  Missouri  and  Texas.     In 

charters  or  deefls,  a  warranty  was  in  Montana,  Nevada.   Dakota  and  New 

the  case  of  a  fioohold  implied  from  Mexico  these  words  are  permitted  by 

the  word  of  feoffment,  cledi.     Rawle  statute  to  imply  covenants  of  seizin 

on  Govts.  §  270.  and  against  incumbrances. 


COVKXAXTS.  431 

But  while  these  words  arc  permitted  to  exert  a  certain  effi- 
cacy in  the  absence  of  other  and  more  direct  expressions,  yet 
their  employment  will  not  create  covenants  against  the  mani- 
fest intention  of  the  ])arties.  The  covenants  raised  by  la\v 
from  the  use  of  particular  words  in  the  deed  are  only  intended 
to  be  operative  when  the  parties  themselves  have  omitted  to 
insert  covenants,  and  the  use  of  almost  any  language  from 
which  it  appears  that  the  parties  intended  that  these  words 
should  not  have  such  an  effect  will  destroy  the  force  of  the 
implied  covenant.'  Hence,  it  has  been  held  that,  where  a  deed 
contains  an  express  covenant,  the  statutory  covenants  are  not 
implied. 

As  previously  remarked,  however,  the  doctrine  of  the  com- 
mon law,  that  certain  words  in  the  conveyahce  of  real  estate 
of  themselves  import  and  make  a  covenant  in  law,  has  been 
abrogated  by  statute  in  a  nuuil^er  of  states,  and  enactments 
have  been  had  which  declare  that  no  covenant  shall  be  implied 
in  any  conveyance  of  real  estate,  whether  such  conveyance 
contain  special  covenants  or  not.  It  is  believed  this  view  is 
supported  by  the  sounder  reason,  and  that  in  time  it  will  re- 
ceive universal  recognition.  A  vendee,  when  he  purchases, 
may  insist  on  the  general  covenants  and  such  special  cove- 
nants as  will  secure  to  him  a  perfect  indemnity  for  an}'  loss  or 
injury  he  may  sustain  by  reason  of  an  intrusion  or  eviction, 
and  if  he  neglects  so  to  do  he  should  not  be  heard  to  com- 
plain. 

§  21.  Statutory  deeds.  An  attempt  has  been  made  in 
many  states  to  simplify  the  forms  of  conveyancing  by  stat- 
utory enactments  prescribing  a  model  or  precedent  for  the 
ordinary  deeds  in  common  use  and  declaring  their  effect.  The 
radical  difference  between  these  forms  and  those  derived  from 
the  common  law  lies  in  the  fact  that  they  are  entirely  without 
habendum,  and  that  the  force  and  effect  of  the  covenants, 
when  the  deed  is  intended  to  carry  covenants,  has  been  trans- 
ferred to  and  merged  into  the  operative  words  of  grant. 
These  words  are  usually  "  convey  and  warrant,"  and  in  legal 
effect  inijjly  that  the  deed  shall  be  deemed  and  held  to  be  a 

iFinley  v.  Steele,  23  111.  5G;  Stew-    v.  McCaughan,  7  Smedes  &  M.  (Pa.) 
art  V.  Anderson,  10  Ala.  504;  Wins-    427. 
ton  V.  Vanglian,  22  Ark.  72;  Weems 


432  CONVEYANCE. 

conveyance  in  fee-simple  to  the  grantee,  his  heirs  and  assigns, 
Avith  covenants  from  the  grantor  for  himself  and  his  heirs 
that  he  is  lawfully  seized  of  the  property,  has  good  right  to 
convey  the  same,  and  guaranties  the  quiet  possession  thereof; 
that  the  same  are  free  from  all  incumbrances,  and  that  he  will 
warrant  and  defend  the  title  to  the  same  against  all  lawful 
claims.^  In  a  few  states  the  spirit  of  "  reform  •'  has  evidently 
clouded  the  judgment  of  the  legislators,  and  the  desire  to 
"simplify  "  has  cut  down  the  verbiage  to  the  fewest  words 
possible  to  effect  a  conveyance.  In  these  forms  there  is  no 
habendum  and  no  attempt  at  express  covenants.  The  opera- 
tive word  of  conveyance  is  "grant,"  which  is  held  to  have  ef- 
fect as  a  covenant  against  the  grantor's  own  acts.- 

Statutory  deeds  of  the  latter  class  are  substantially  the  same 
as  common-law  deeds  with  implied  covenants,  the  general 
effect  of  the  words  "grant,  bargain  and  sell"  being  to  raise 
an  implied  covenant  against  tlie  acts  of  the  grantor  unless  re- 
strained by  special  statute  or  a  general  statute  abrogating  all 
im])lied  covenants  in  conveyances.  Deeds  of  the  former  class, 
made  in  conformity  to  the  statute,  have  all  the  force  and  effect 
of  the  special  covenants  that  are  usually  contained  in  the  com- 
mon-law deeds  of  conveyance.  All  the  covenants  mentioned 
in  the  statute  are  to  be  regarded  and  treated  as  though  they 
were  incorporated  in  the  deed,  of  which  they  constitute  a  part 
equally  as  though  they  were  written  therein.' 

§  22.  Where  wife  refuses  to  join.  In  the  absence  of  an 
express  stipulation  providing  for  a  release  of  dower  it  would 
seem  that  a  vendor  who  has  covenanted  to  convey  by  "a  good 
and  sufficient  deed  of  general  warranty  "  is  regarded  as  having 
fully  performed  his  part  of  the  agreement  if  he  tenders  a  deed 
executed  by  himself  alone,  and  containing  the  covenants  stip- 
ulated for.^  Such  a  covenant  to  convey  amounts  to  nothing 
more,  it  is  said,  than  an  engagement  that  it  shall  bar  the  cov- 
enantor and  his  heirs  from  ever  claiming  the  land,  and  that  he 
and  his  heirs  shall  ever  undertake  to  defend  it  when  assailed 
by  paramount  title.'     Should  the  wife  of  the  grantor  in  the 

1  A  substantial  transcript  of  tlie  "^  Carver  v.  Louthain,  38  Ind.  530. 
statute  of  Illinois,  Indiana,  Michigan,  *Bostwick  v.  Williams,  36  IlL  65. 
Mississippi  and  Wisconsin.  ^  Bostwick  v.  Williams,  36  111.  65. 

-  This  form  is  adopted  in  Califor- 
nia, Dakota,  Maryland  and  Texas. 


COVENANTS.  4.'i.3 

dewl  containing  such  a  covenant,  but  whose  right  of  dower 
was  not  released  thereby,  become  a  widow  and  claim  and  re- 
cover her  (lower  in  a  mode  by  which  the  grantee  migiit  be 
injured,  he  would  be  able  to  obtam  recompense  on  the  covenant 
in  his  deed.' 

Tiie  courts  announcing  the  foregoing  doctrine  proceed  upon 
the  theory  that  a  covenant  of  general  warranty  does  not  of 
itself  include  a  covenant  against  incumbrances,  and  that  even  if 
a  contract  to  convey  with  warranty  can  be  construed  into  a 
contract  to  make  a  deed  free  from  incumbrances,  yet  that  a 
possibility  of  dower  is  not,  within  the  sense  of  such  a  covenant, 
an  incumbrance.- 

§  23.  Value  of  covenants.  Mr.  Preston,  an  English  writer 
of  eminence,  seems  to  think  that  purchasers  in  general  attach 
more  value  to  covenants  for  title  than  they  are  really  worth, 
and  that  considering  the  property  of  parties,  the  chances  of 
eventual  insolvencv,  etc.,  covenants  rarely  produce  the  benefit 
which  is  expected  from  them.'  He  further  observes  that,  when 
the  property  is  subdivided  by  sales,  it  seems  to  follow  from  a 
maxim  of  law  that  the  purchasers  lose  the  benefit  of  former 
covenants,  on  the  ground  that  the  remedy  cannot  be  appor- 
tioned, or,  in  more  correct  terms,  the  covenantor  cannot  be 
subjected  to  several  actions.  AVith  respect  to  the  latter  obser- 
vation, however,  the  rule  now  seems  to  be  settled  that  where 
a  covenant  running  with  the  land  is  divisible  in  its  nature,  if 
the  entire  interest  in  different  parcels  of  the  land  passes  by 
assignment  to  separate  individuals,  the  covenant  will  attach 
on  each  separate  parcel /»;'6>  7-ata^*  and  while  it  is  true  that  the 
financial  responsibility  of  covenantors  is  liable  to  be  rendered 
valueless  by  subsequent  insolvency,  yet  this  is  one  of  the  risks 
Avhich  men  are  necessarily  obliged  to  assume  in  all  transac- 
tions involving  personal  credit  and  financial  reliance. 

Aside  from  their  financial  features  as  guaranties  of  indem- 
nity, covenants  have  many  otlier  excellent  attributes  which 
render  them  desirable  to  the  purchaser  and  which  give  to  them 
an  actual  value.  They  act  as  estoppels  and  permit  the  subse- 
quent inurement  of  title;  they  are  also  prima  facie  evidence 

1  Bostwick  V.  Williams,  36  III.  65.  3  3  Prcst.  on  Abstracts,  57. 

-  See  Powell  v.  Monson,  etc.  Co.  3  *See  Astor  v.  Miller,  2  Paige  (N.  Y.), 

Mason  (C.  Ct.),  355.  68. 
28 


434:  CONVEYANCE. 

of  legal  good  faitii  in  real  estate  transactions,  often  affording 
protection  against  latent  equities;  and  in  examinations  of  title 
a  long  series  of  warranty  deeds  tends  to  give  a  stability  to 
tl;e  title  that  no  other  agency  can  produce.  A  chain  of  title 
composed  mainly  of  quitclaims  or  deeds  with  limited  cove- 
nants carries  suspicion  on  its  face,  and  under  the  rulings  of 
some  courts  is  a  direct  notification  to  the  purchaser  that  his 
title  is  doubtful,  and  that  in  accepting  the  same  he  assumes 
the  risk  of  having  it  defeated  by  some  existing  but  latent 
equity.  For  this  reason,  then,  if  for  no  other,  should  a  pur- 
chaser insist  upon  the  assurance  of  his  title  b}'  proper  cove- 
nants; and  notwithstanding  the  fact  that  his  covenantor  is 
pecuniarily  unable  to  respond  in  damages  for  any  breach,  the 
covenants  themselves  may  be  a  tower  of  defense  in  case  the 
title  should  be  subsequently  assailed. 

§  24.  Defective  covenants  —  Operation  and  effect.  The 
introduction  of  labor-saving  blanks  has  been  a  prolific  source 
of  error  in  the  draughting  of  conveyances.  Not  only  have 
they  served  to  beget  habits  of  carelessness  and  inattention  in 
regular  practitioners,  but  by  furnishing  in  an  abstract  form 
I  he  technical  knowledge  requisite  to  the  draughting  of  instru- 
ments, the  art  of  conveyancing  has  become  debased,  and  the 
office  of  the  conveyancer  has  lost  its  dignity  in  the  frequent 
usurpations  to  which  it  has  been  subjected.  Ignorant  officials, 
as  well  as  ambitious  but  economical  individuals,  each  in  turn 
assume  the  duties  of  the  conveyancer,  and,  with  the  aid  of  the 
accommodating  blank,  affect  to  perform  the  functions  of  his 
office.  As  a  natural  result,  we  frequently  meet  with  many 
atrocious  examples  of  conveyancing,  and  courts  are  often  called 
upon  to  interpret  the  efforts  or  construe  the  inartificial  expres- 
sions of  the  unskilled  draughtsman.  The  very  liberal  con- 
struction now  awarded  deeds  and  other  instruments,  as  well 
as  the  operation  of  statutes,  which  in  a  large  measure  have 
destroyed  the  effect  of  common-law  rules,  serves  in  some  de- 
gree to  counteract  the  errors,  omissions  and  defects  of  the 
amateur  conveyancer;  yet  such  is  the  ignorance  prevailing 
among  the  classes  named  of  the  nature  and  effect  of  the  opera- 
live  parts  of  deeds  that  parties  are  frequently  surprised  into 
contracts  they  have  not  made  and  never  intended.  Particu- 
larly is  this  true  in  respect  to  the  expressed  covenants,  the 


COVENANTS.  435 

technical  nature  of  which  are  but  slightly  understood  by  the 
masses,  and  vital  defects  are  more  frequently  met  with  in  these 
clauses  than  in  any  other  part  of  the  deed.  The  printed 
covenant  clause  ordinaril}'  commences  somewhat  as  follows: 

"And  the  said ,  for heirs,  etc.,  does  covenant," 

etc.  Through  ignorance  or  carelessness,  the  draughtsman 
sometimes  neglects  to  fill  either  of  these  blank  spaces,  the  first 
of  which  is  intended  for  the  names  of  the  covenanting  parties, 
and  the  second  for  personal  pronouns  indicative  of  the  same. 
The  effect  of  an  omission  to  fill  these  blanks  is  to  render  the 
entire  clause  nugatory,  for  where  these  spaces  are  not  filled 
by  the  insertion  of  any  names,  the  inference  naturally  arises 
that  no  sucli  covenant  was  intended  to  be  made;  nor  can  the 
context,  by  construction,  supply  the  omission.'  This  is,  how- 
ever, an  extreme  case,  for  the  use  of  the  first  space  is  so  ob- 
vious that  few  persons  of  ordinary  comprehension  will  mistake 
its  purport;  but  the  rock  on  which  the  amateur  conveyancer 
usually  splits  is  the  second  space.  This,  when  properly  filled, 
contains  two  pronouns,  as  "themselves,  their;-'  but  the 
draughtsman,  misled,  perhaps,  by  the  context,  and  of  course 
ignorant  of  the  legal  effect  of  the  expression,  usually  inserts 
only  the  word  "  their,"  and  in  this  condition  the  deed  is  de- 
livered and  accepted. 

The  frequency  with  which  this  error  is  found  justifies  an  in- 
quiry into  its  legal  effect.  In  this  instance,  not  only  is  there 
no  direct  covenant  on  the  part  of  the  granting  part}',  but 
there  is  an  unequivocal  covenant  for  the  heirs  of  such  party; 
and  though  courts  are  ever  inclined  to  construe  evident  errors 
and  omissions  of  the  clerk  liberally,  and  to  give  effect  to  the 
instrument  according  to  the  manifest  intention  of  the  parties,- 
yet  the  princii)le  is  well  settled  that  the  liability  of  parties 
under  a  contract  must  depend  upon  the  terms  they  have  seen 
fit  to  use,  and  not  upon  those  they  might  have  used;*  while 
mistakes  of  law  never  afford  ground  for  equitable  relief.* 

Now,  in  the  example  under  consideration,  there  is  neither 

1  Day  V.  Brown,  2  Oliio,  345.  v.  Bancroft,  13  Kan.  123;  Walker  v. 

2Callins  v.    Lavalle,   44    Vt.    230;  Tucker,  70  III.  o27. 
Churchill  v.  Reamer  8  Bush  (Ky.),       ^  Hayes  v.  Stiger,  29  N.  J.  E(i.  19(5; 

256;  Peckham  v.  Haddock,  36  111.  38.  Morris  v.  Hogle,  37  111.  150. 

3  Day  V.  Brown,  2  Ohio,  315;  Bobb 


436  CONVEYANCE. 

uncertainty  nor  manifest  error,  and  the  legal  effect  of  a  cove- 
nant of  this  character  is,  not  that  tlic  grantors  will  defend  the 
title,  but  that  the  same  shall  be  defended  by  their  heirs,  etc. 
It  does  not  give  a  right  of  action  against  the  grantors  on  the 
loss  of  title,  but  provides  a  remedy  against  their  heirs  and 
legal  representatives;  it  exempts  the  grantors  from  personal 
liability,  but  binds  their  descendants  in  respect  of  the  estate 
that  may  be  cast  upon  them.  It  is  not  like  a  covenant  that  a 
person  who  is  not  a  party  to  the  deed  shall  warrant  and  de- 
fend the  title,  for  in  such  case,  upon  the  eviction  of  the 
grantee,  and  the  failure  of  such  third  person  to  comply  with 
the  terras  of  the  covenant,  an  action  might  be  maintained 
against  the  grantors,  on  the  familiar  principle  that  what  a 
party  undertakes  shall  be  performed  by  another  he  must  him- 
self perform  on  the  default  of  that  other.  In  this  case  the 
covenant  is  that  the  act  shall  be  performed  by  parties  who 
can  have  no  legal  existence  during  the  life  of  the  grantors, 
and  until  their  decease  there  is  no  person  living  .who  can  be 
called  upon  to  avouch  the  title.^ 

Such  are  the  views  expressed  by  the  supreme  court  of  Illi- 
nois, and  they  would  seem  to  be  founded  in  reason  and  upon 
sound  principle,  and  in  states  where  by  statute  no  covenants 
can  be  implied  in  deeds  or  other  instruments  the  conclusions 
above  stated  would  appear  to  be  irresistible ;  yet  in  Wisconsin, 
where  a  statute  similar  to  that  just  mentioned  has  long  been 
in  force,  and  where  this  question  has  twice  been  presented,  a 
result  diametrically  opposed  to  that  above  given  has  been 
reached.  In  the  first  case^  it  was  held  that  although  the  cov- 
enant might  be  defective  in  law,  yet  equity  would  always  sup- 
ply the  omission  in  conformity  with  the  evident  intention  of 
the  grantor;  while  in  the  second  ^  the  covenant  was  sustained 
as  that  of  the  grantor,  notwithstanding  the  omission.  In 
neither  case,  however,  do  the  decisions  appear  to  have  been 
reached  by  much  reasoning,  nor  do  the  learned  judges  fortify 
the  same  with  any  citation  of  authority.  The  reason  assigned 
in  the  first  instance  is  obviously  defective  and  incorrect,  for  the 
"  evident  intention  of  the  grantor  "  cannot  be  better  deter- 

iTraynor  v.  Palmer,  86  111.  477;  2  Stanley  v.  Goodrich,  18  Wis.  505. 
Ruffner  v.  McConnell,  14  III.  168.  3  Hilmert  v.  Christian,  29  Wis.  104. 


COVENANTS.  437 

mined  than  from  the  language  of  the  conveyance;'  and  where 
the  language  is  unambiguous,  although  the  parties  may  have 
failed  to  express  their  real  intention,  there  is  no  room  for  con- 
struction, and  the  legal  effect  of  the  agreement  must  be  en- 
forced.^ Words  and  phrases  are  always  to  be  taken  in  their 
commonly-accepted  sense,  unless  a  different  intent  plainly 
appears;  and  where  words  have  a  well-defined,  specific  mean- 
ing, importing  intention,  they  cannot  bo  altered,  limited  or 
enlarged  in  their  meaning  by  implication  or  extrinsic  evi- 
dence.^ 

It  is  a  rule  of  universal  recognition  that  when  parties  de- 
liberately put  their  engagements  in  writing,  in  such  terms  as 
import  a  legal  obligation,  without  any  uncertainty  as  to  the 
object  or  the  extent  of  such  engagement,  it  is  conclusively 
presumed  that  the  whole  engagement  of  the  parties,  its  ex- 
tent and  manner,  is  thereby  expressed.  To  add  to  it  by  im- 
plication would  be  to  vary  its  terms; ^  and  though  contracts 
must  always  receive  a  liberal  interpretation,  yet  courts  are 
powerless  to  disregard  the  terms  of  a  contract  plainly  ex- 
pressed, and  their  only  duty  is  to  enforce  the  same  according 
to  the  intent  of  the  parties  as  shown  by  the  language  used.* 

The  omission,  it  is  true,  might  readily  be  inferred  with  refer- 
ence to  the  established  custom  of  drawing  conveyances  and 
the  insertion  of  covenants;  but  the  rule  still  remains  that 
where  parties  have  settled  the  terms  and  conditions  of  a  con- 
tract by  agreement,  which  has  been  reduced  to  writing,  they 
must  be  governed  by  its  provisions,  and  will  be  concluded  by 
it  regardless  of  any  usage  or  custom.*^ 

A  different  case  is  presented  in  an  imperfectly-filled  blank, 
but  which  still  indicates  an  intention.     Thus,  a  covenant  by 

grantors  "for   them, heirs,"    etc.,  has  been  construed 

"  themselves,  their  heirs,"  etc.,  and  held  to  be  the  covenant  of  the 

1  German  Ins.  Bank  v.  Nunes,  14  *  Merchants'  Ins.  Co.   v.  Morrison, 

Reporter,  206.  62  III.  243. 

-'Walker  v.  Tucker,  70 III.  527;  Cal-  ^Coey  v.  Lehman,  79  III.  173;  Kim- 
lender  V.   Dinsmore,   55  N.   Y.    200 ;  ball  v.  Custer,  73  111.  389. 
Fire  Ins.  Co.  v.  Doll,  35  Md.  89.  ^  Corbet  v.  Underwood,  83  III.  324 ; 

3  Galena  Ins.  Co.  v.  Kupfer,  28  111.  Kimball  v.  Custer,  73  111.  389;  Moran 

333.  V.  Prather,    23  Wall.  492;  Callender 

V.  Dinsmore,  55  N.  Y.  200. 


438  CON  VE  VANCE. 

grantors;^  but  in  this  instance  the  intention  is  clearly  manifest 
and  the  error  of  the  clerk  very  palpable.  The  question  of 
construction  in  such  a  case  is  comparatively  simple,  and  the 
imperfect  words  show  the  intention  of  the  *,n"aiitor.  The  neg- 
lect to  insert  the  word  "  their  "  was  also  immaterial,  as  would 
have  been  the  word  "  heirs,"  for  the  legal  effect  of  the  cove- 
nant would  have  been  the  same  if  all  reference  to  the  heirs,  ex- 
ecutors and  administrators  had  been  omitted.- 

§  25.  Quitclaims.  A  quitclaim  deed  will  as  effectually  pass 
the  title  and  covenants  running  with  the  land  as  a  deed  of  bar- 
gain and  sale  if  no  words  restrict  its  meaning ;  ^  and,  where  such 
deed  contains  a  covenant  for  further  assurance,  will  convey  a 
subsequently -acquired  title  as  well  as  a  covenant  of  warranty.* 
But  where  one  accepts  a  deed  without  covenants  of  title  he 
takes  the  hazard  of  the  same,  and,  in  the  absence  of  fraud,  can- 
not recover  back  the  purchase  money  on  failure  of  title.^ 

The  operative  words  usually  employed  in  deeds  of  the  char- 
acter under  consideration  are  "convey  and  quitclaim;"  but 
it  has  been  held  that  a  deed  which  "grants,  bargains  and  sells 
all  of  the  right,  title  and  interest "  of  the  grantor  is  merely  a 
quitclaim  conveyance,  and  inoperative  to  convey  an  after- 
acquired  title.*^  "Where  implied  covenants  are  permitted  to 
obtain,  and  where  such  covenants  are  held  to  be  raised  by  the 
employment  of  the  words  "grant,  bargain  and  sell,"  it  may 
be  a  question  whether  this  rule  would  hold  good,  notwith- 
standing that  the  estate  purported  to  be  conveyed  is  only  the 
"  right,  title  and  interest  "  of  the  grantor. 

1  Baker  v.  Hunt,  40  111.  204.  *  Bennett  v.  Waller,  23  111.  97. 

2  Hall   V.    Bumstead,    20    Pick.  2 ;       ^  Botsford  v.  Wilson,  75  111.  132. 
Bell  V.  Boston,  101  Mass.  506.  6  Butcher  v.  Rogers,  60  Me.  138. 

3  Morgan  v.  Clayton,  61  111.  35. 


CONDITIONS,  LIMrrATIONS    AND    RESTRICTIONS. 


439 


CIIAPTER  XVII. 


CONDITIONS,  LIMITATIONS  AND  RESTRICTIONS. 


^  1.     General  principles. 

2.  Conditions. 

3.  Continued  —  Classification. 

4.  Operation  and  effect. 

5.  Construction. 

0.     Continued  —  Conditions      in 
avoidance. 

7.  Continued  —  When  construed 

as  covenants. 

8.  Creation  of  conditions. 

9.  Revesting  of  estate. 

10.  Who  may  take   advantage  of 

condition  broken. 

11.  Wlio  may  perform. 

12.  Prevention  of  performance. 

13.  Time  of  performance. 


^  14.     Conditions     in     restraint     of 

alienation. 
15.     Continued  —  With  respect  to 

persoi.s, 
IG.     Continued   —  Considered     in 

connection   with  prescribed 

and  prohibited  uses. 

17.  Continued — Intoxicants. 

18.  Conditional  limitations. 

19.  Restrictive  stipulations. 

20.  Restrictions  on  use- 

21.  Building  restriction?. 

22.  Prohibited  employment's. 

23.  Enforcement  of  restrictions. 

24.  Conveyances  for  support. 

25.  Conveyances  for  specific  use. 

26.  Resume. 


§  1.  General  principles.  It  is  now  well  settled  that  every 
owner  of  real  estate  has  the  right  so  to  deal  witli  it  as  to  re- 
strain its  use  by  his  grantees  within  such  limits  as  to  prevent 
its  appropriation  to  purposes  which  will  impair  the  value  or 
diminish  the  pleasure  of  the  enjoyment  of  the  land  which  he 
retains.  The  only  limitation  on  this  right  is  that  it  shall  be 
exercised  reasonably  with  due  regard  to  ))ublic  policy,  and 
without  creating  any  unlawful  restraint  of  trade;  and,  keeping 
within  this  limitation,  there  is  no  longer  room  for  a  doubt 
that  in  whatever  shape  such  restraint  is  placed  on  land  by  the 
terms  of  ihe  grant —  whether  it  is  in  the  technical  form  of  a 
condition  or  covenant,  or  of  a  reservation  or  exception  in  the 
deed,  or  by  words  which  give  to  the  acceptance  of  the  deed 
by  the  grantee  the  force  and  effect  of  a  parol  agreement  —  it  is 
bindinc^  as  between  the  <2:rantor  and  the  iinmediiite  ^irantee, 
luid  can  be  enforced  against  him  both  at  law  and  in  c(iuity.' 

'  Whitney  v.  Union  R'y  Co.  11  Mass.  512:  llarriman  v.  Park,  55  N. 
Crray  (Mass.),  359 ;  Gannett  v.  Albree,  H.  471 ;  Emerson  v.  Mooney ,  50  N.  H. 
10  5  Mass.  372;  Linzie  v.  Mixer,   101    315;  Plumb  v.  Tubbs,  41  N.    Y.   442; 


440  CONVEYANCE. 

A  more  difficult  qaestion  is  presented  when  we  come  to  con- 
sider to  what  extent  and  in  what  cases  such  stipulations  are 
binding,  if  at  all,  on  those  who  take  the  estate  under  the 
•grantee,  either  directly  or  by  a  derivative  title.  The  better 
opinion,  however,  seems  to  be  that  such  agreements  are  valid 
and  capable  of  enforcement  in  equity  against  all  who  acquire 
the  title  with  notice  of  the  restriction.  This  opinion  seems  to 
rest  on  the  principle  that  as  in  equity  that  which  is  agreed  to 
be  done  shall  be  considered  as  performed,  a  purchaser  of  land, 
with  notice  of  the  existing  rights  of  another,  is  liable  to  the 
same  extent  and  in  the  same  manner  as  the  person  from  whom 
he  made  the  purchase,  and  is  bound  to  do  that  which  his 
vendor  had  agreed  to  perform.'  It  seems,  also,  that  such 
agreements  have  been  upheld  in  equity  as  against  subsequent 
purchasers  with  notice,  on  the  ground  that  such  stipulations 
create  an  easement  or  privilege  in  the  land  conveyed  for  the 
use  and  benefit  of  the  grantor  and  those  who  might  after- 
wards claim  under  him  as  owners  of  the  adjacent  land  of 
which  the  land  granted  originally  formed  a  part.- 

In  neither  of  the  foregoing  cases  are  the  agreements  re- 
garded as  real  covenants  running  with  land,  nor  is  it  contended 
that  they  are  of  such  a  nature  as  to  create  a  technical  quali- 
iication  of  the  title  conveyed  by  the  deed.  Indeed,  they  do 
not  affect  the  title,  but  only  the  mode  of  use.  Strictly  speak- 
ing they  amount  to  no  more  than  personal  contracts,  and  at 
law  would  be  binding  only  on  the  original  parties.  But  in 
equity  those  claiming  title  under  them  may  resort  to  the  whole 
instrument,  including  the  covenants  and  agreements  in  gross, 
for  the  purpose  of  ascertaining  the  nature  of  the  right  in- 
tended to  be  conveyed;  and,  when  ascertained,  the  court  will 
enforce  in  favor  of  such  persons  that  use  or  mode  of  enjoy- 
ment which  the  grantor  has  seen  fit  to  impress  upon  it,  and 
thus  the  effect  of  a  grant  may  be  given  to  that  which  is  in 
the  form  of  an  agreement,  binding  at  law  only  between  the 
original  parties.'' 

O'Brien  v.  Wetherill,  14  Kan.    616;  2parker  v.   Nightingale,   6    Allen 

Collins  V.  Marcy,  25  Conn.  242;  Stines  (Mass.),  345. 

V.  Dornian,  25  OhioSt.  580.  3  Schwoerer   v.   Market  Ass'n.    99 

1  Whitney    v.    Union   R'y   Co.     11  Mass.  298. 
Gray    (Mass.),     359;    Schwoerer    v. 
Market    Association,    99    Mass,    298. 


CONDITIONS,  LIMITATIONS    AND    KESTRICTI0N8.  441 

It  will  be  seen,  tlierefoi-e,  that  the  precise  form  (;r  nature  of 
the  covenant  or  agreement  is  immaterial;  neither  is  it  essential 
that  it  shoukl  run  with  the  land.  A  personal  covenant  or 
agreement  will  be  held  valid  and  binding  in  ecjuity  on  a  pur- 
chaser taking  tlie  estate  with  notice,  not  merely  because  he 
stands  as  assignee  of  the  party  who  made  the  agreement,  but 
because  he  has  taken  such  estate  in  full  view  of  an  agreement 
concerning  it  which  he  cannot ecjuitably  refuse  to  perform;  or, 
on  the  other  hand,  in  order  to  carry  out  the  plain  intent  of  the 
original  parties,  it  will  be  construed  as  creating  a  right  or  in- 
terest in  the  nature  of  an  incorporeal  hereditament  or  ease- 
ment appurtenant  to  the  remaining  land  belonging  to  the 
grantor  at  the  time  of  the  grant,  and  arising  out  of  and  at- 
tached to  the  land,  part  of  the  original  parcel  conveyed  to  the 
grantee.' 

§  2.  Conditions.  Probably  the  most  familiar  and  widely- 
employed  method  of  imjiosing  burdens  on  the  grantee,  or  of 
subjecting  the  estate  conveyed  to  some  particular  restriction 
or  limitation,  or  of  confining  the  enjoyment  of  the  granted 
premises  to  some  specific  use,  is  by  the  insertion  in  the  deed 
of  a  recital  technically  known  as  a  condition,  the  effect  of 
which,  in  case  of  breach,  may  be  to  modify  or  defeat  the  grant 
with  which  it  is  connected. - 

1  Whitney  v.  Union  R'y  Co.  11  from  that  which  obtains  in  the  United 
Gray  (Mass.),  359.  States,  and  wliich  recognized  as  the 

2  Conditional  estates  are  an  inherit-  liighest  type  of  property  in  the  sub- 
ance  from  the  feudal  law,  and  orig-  ject  only  a  leaseliold  interest ;  and 
inally  grew  out  of  the  conditions  although  this  interest  might  con- 
upon  which  fiefs  were  granted.  They  tinue  for  an  indefinite  period  of  time 
imply  a  liolduig  by  tenure,  and  for  and  was  dignified  with  the  name  of 
tliis  reason,  if  none  other,  are  not  in  freehold,  it  was  still  dependent  on 
accord  with  the  genius  of  our  insti-  conditions,  and  the  reversion  could 
tutions,  which  recognizes  no  superior  never  be  lost  to  the  ultimate  lord, 
lord  holding  reversions  or  other  par-  The  principle  of  forfeiture  came  to 
amount  riglits,  and  are  fundamen-  us  with  other  inapt  and  inconsistent 
tall}- opposed  to  tiie  principles  of  own-  doctrines  on  the  separation  of  the 
ership  under  allodial  titles.  Forfeit-  colonies,  and  has  beeu  retainid 
ure,  which  is  the  inseparable  legal  through  a  series  of  years  mainly  be- 
incident  to  such  estates,  is  not  com-  cause  of  a  slavish  and,  in  many  cases, 
patible  with  the  modern  American  blind  adherence  to  the  formidable 
idea  of  full  and  complete  ownership,  array  of  English  precedents  which 
It  originated  and  was  developed  American  jurists  have  falsely  en- 
under  a  system  radically  different  deavored  to  apply  to  our  system  of 


442  CONVEYANCR. 

Bat  what  will  or  will  not  constitute  a  condition  is  often  a 
matter  of  nice  discrimination  and  construction,  and,  as  great 
property  interests  frequently  depend  upon  the  value  to  be 
given  to  stipulations  and  recitals,  it  is  to  be  regretted  that  a 
lull  review  of  the  adjudicated  cases  leaves  the  matter,  if  not  in 
doubt,  at  least  in  such  a  state  that  but  few  rules  can  be  de- 
duced for  the  benefit  of  the  practitioner.  In  theory,  perhaps, 
there  should  be  little  difficulty  in  properly  construing  recitals 
of  the  character  under  consideration,  if  technical  words  and 
forms  of  expression  were  always  accorded  the  meaning  and 
signification  which  long  usage  and  judicial  interpretation  have 
given  them,  or  if  the  legal  consequences  which  flow  from  the 
employment  of  such  terms  could  always  be  determined  by  ar- 
bitrary rules.  But  in  practice  the  questions  thus  raised  are 
often  difficult  and  perplexing.  No  standard  is  available  to 
determine  their  value,  for  the  modern  rules  of  construction 
have  materially  changed  the  effect  of  technical  words,  while 
special  clauses  indicative  of  a  particular  intent  must  give  way 
to  the  general  intent  as  developed  by  the  entire  instrument, 
read  in  the  light  of  extrinsic  facts;  and  thus  conditions  in  form 
may  be  construed  as  covenants  in  effect,  or  as  simple  stipula- 
tions operating  neither  as  conditions  or  covenants.  The  object 
of  this  chapter,  therefore,  will  be  briefly  to  consider  the  opera- 
tion of  special  conditions  and  stipulations  in  conveyances  by 

titles  and  estates.  But  the  original  eration  and  effect  now  accorded  to 
and  inherent  principles  of  allodial  technical  recitals  importing  condi- 
ownership,  when  unaffected  by  the  tions  in  deeds  of  realty.  From  every 
doctrines  of  the  common  law,  afford  side  come  indications  of  speedy  re- 
no  room  for  reversionary  rights  in  versal  or  denial  of  the  common-law 
one  who  has  parted  with  his  title  by  canons  of  forfeiture ;  and  as  the  bench 
an  absolute  conveyance;  and  the  doc-  and  the  ranks  of  the  elementary 
trine  of  conditional  estates,  so  far  as  writers  continue  to  be  recruited  from 
it  is  administered  in  this  country,  men  imbued  with  American  ideas  of 
forms  an  anomalous  proceeding,  un-  American  law,  and  freed  from  the 
supported  by  principle  and  author-  influence  of  the  harsh  and  inappro- 
ized  by  very  doubtful  precedent.  priate  rules  of  our  English  inher- 
That  these  sentiments  are  not  itance,  forfeiture  of  a  fee-simple  es- 
shared  alone  by  the  writer  is  evident  tate  once  vested  will  become  an  im- 
from  the  uniform  tendency  of  mod-  possibility,  and  the  more  just  and 
em  judicial  decision ;  the  great  enlightened  rule  of  compensation  or 
change,  which,  particularly  in  the  performance  will  provide  an  adequate 
west,  has  been  wrought  in  the  con-  remedy  for  all  breaches  of  covenants 
struction  of  mortgages;  and  the  op-  and  conditions. 


CONDITIONS,  LIMITATIONS    AND    RESTRICTIONS.  443 

deed,  and  the  cfTcct  they  may  have  u|ion  the  estate  con- 
veyed. 

§  3.  Continued  —  C'lassiflcjition.  Conditions  are  classed  as 
j)rccedent  and  subse(|iient.  ("onditions  |)reccdont  are  such  as 
must  hapjKMi  or  be  jicrfonnctl  before  the  estate  can  vest  or  be 
enlarged;  they  admit  of  no  latilude,  and  must  be  strictly,  lit- 
erally and  punctually  ])erformed.'  Ordinarily  no  questions 
can  arise  as  to  their  construction,  save  only  whether  they 
should  not  be  construed  as  subsequent  rather  than  precedent, 
for  no  precise  language  is  necessary  to  constitute  them  when 
the  intent  is  I'ully  disclosed;  and  whether  a  condition  is  prece- 
dent or  subsequent  depends  up,on  the  intention  of  the  parties 
as  shown  by  a  ])roper  construction  of  the  whole  instrument- 
Conditions  subsequent  indicate  something  to  be  performed 
after  the  estate  has  vested,  the  continuance  of  the  estate  de- 
pending upon  its  performance.  It  is  this  class  of  conditions 
which  has  given  rise  to  most  of  the  litigation  on  the  subject 
as  well  as  to  the  many  embarrassing  questions  of  construction. 

The  legal  effect  of  a  condition  precedent  is  to  withhold  the 
estate  until  performance;  the  legal  effect  of  a  condition  sub- 
sequent is  to  defeat  the  estate  already  vested  upon  a  breach  or 
nonperformance.  But  although  the  several  effects  of  these 
two  classes  are  so  divergent,  it  is  not  always  easy  to  determine 
whether  the  condition  is  precedent  or  subsequent  from  the 
language  employed.  If,  however,  the  act  or  condition  required 
does  not  necessarily  precede  the  vesting  of  the  estate,  but  may 
accompany  or  follow  it,  and  if  the  act  may  as  well  be  done 
after  as  before  the  vesting  of  the  estate,  or  if,  from  the  nature 
of  the  act  to  be  performed  and  the  time  required  for  its  per- 
formance, it  is  evidently  the  intention  of  the  parties  that  the 
estate  shall  vest  and  the  grantee  perform  the  act  after  taking 
possession,  then  the  condition  is  subsequent.^ 

Subsequent  conditions,  as  they  tend  to  defeat  estates,  are  not 

iVan  Horue  v.  Dorrance,  3  Dall.  Finlay  v.  King's  Lessee,  3  Pet.  (U.  S.) 

(U.    S.)  317;    Moakley   v.    Riggs,    19  346;    Gardiner  v.    Corson,    15   Miujs. 

Johns.  71 ;   Bostwick  v.  Hess,  SO  111.  500. 

138;  Taylor  V.  Bullen,  G  Cow.  (X.  Y.)  ^  Undorhill    v.   Saratoga,  20   Bail). 

627.  4r)5 ;  Nicoll  v.  R.  Co.  2  Kernan  (X.  Y.), 

^Rogan   V.    Walker,    1    Wis.    527;  121;  Finlay  v.  King's  Lessee,   3  Pet. 

Sheppard  v.   Thomas,    2G   Ark.    617;  (U.  S.)  374. 
Underliill  v.  Saratoga,  20  Barb.  455 ; 


444 


CONVEYANCE. 


favored  by  the  courts/  and  are  always  to  be  strictly  construed 
as  against  the  grantor,^  and  with  liberal  intendments  as  re- 
gards the  grantee.^  Forfeitures  are  said  to  be  odious;*  and, 
unless  the  conditions  are  clearly  and  minutely  expressed,^  the 
courts  will,  as  a  rule,  eagerly  lay  hold  of  any  plausible  feature 
to  sustain  the  grant,^  and  for  this  purpose  will  always,  when 
the  import  of  the  language  used  is  doubtful,  incline  to  interpret 
the  recitals  as  covenants  rather  than  conditions.' 

Where  a  conveyance  of  land  in  fee  is  made  upon  a  condi- 
tion subsequent,  the  fee  remains  in  the  grantee  until  breach  of 
condition  and  a  re-entry  by  the  grantor.  The  condition  has 
no  effect  to  limit  the  title  until  it  becomes  operative  to  defeat 
it;  and  the  possibility  of  reverter,  which  is  all  that  remains  in 
the  grantor,  is  not  an  estate  in  the  land.^  The  estate  held  by 
the  grantee  will,  of  course,  remain  defeasible  until  the  condi- 
tion be  performed,  destroyed  or  barred  by  the  statute  of  lim- 
itations or  by  estoppel.^ 


1  Palmer  v.  Ford,  70  111.  196;  War- 
ner V.  Bennett,  '61  Conn.  478;  Craig 
V.  Wells,  11  N.  Y.  315. 

-Gadberry  v.  Sheppard,  27  Miss. 
203 ;  Hoyt  v.  Kimball,  49  N.  H.  322 ; 
Moore  v.  Pitts,  53  N.  Y.  85 ;  Duryea 
V.  Mayor,  62  N.  Y.  592. 

s  Palmer  v.  Ford,  70  111.  369 ;  Wood- 
worth  V.  Payne,  74  N.  Y.  196;  Glenn 
V.  Davis,  35  Md.  208;  Merrifield  v. 
Cobleigh,  4  Cush.  (Mass.)  184;  Mc- 
Questen  v.  Morgan,  34  N.  H.  400.  It 
is  upon  this  principle  that  it  has  been 
held  that  where  a  condition  applies 
in  terms  to  the  grantee,  without 
mention  of  his  heirs,  etc.,  the  condi- 
tion cannot  be  broken  after  the  death 
of  the  grantee.  So,  also,  although 
the  heirs,  etc.,  are  named,  yet  if  as- 
signs are  not,  it  will  not  be  broken  by 
any  act  of  an  assignee.  Emerson  v. 
Simpson,  43  N.  H.  475. 

1  Warner  v.  Bennett,  31  Conn.  478; 
Ins.  Co.  V.  Pierce,  75  111.  427 ;  Rowell 
V.  Jewett,  71  Me.  408. 

^Woodworth  v.  Paj'ne,  74  N.  Y. 
196.  The  extent  and  meaning  of  a 
condition  and  the  fact  of  a  breach 


are  questions  strictissima  juris;  and 
a  plaintiff,  to  defeat  an  estate  of  his 
own  creation,  must  bring  the  defend- 
ant clearly  within  its  letter.  Lynde 
V.  Hough,  27  Barb.  (N.  Y.)  415;  Hunt 
V.  Beeson,  18  Ind.  3S0 ;  Taylor  v.  Sut- 
ton, 15  Ga.  103;  Page  v.  Palmer,  48 
N.  H.  385;  Weir  v.  Simuions,  55  Wis. 
637. 

e  Hammond  v.  R.  Co.  15  S.  C.  10; 
Jackson  v.  Harrison,  17  John.  66. 

'Board  of  Education  v.  Trustees, 
63  111.  204;  Hoyt  v.  Kimball,  49  N.  H. 
322;  Wheeler  v.  Dascomb,  3  Cush. 
(Mass.)  285;  Thornton  v.  Trammell, 
39  Ga,  202;  Packard  v.  Ames,  16 
Gray  (Mass.),  327. 

8  Shattuck  V.  Hastings,  99  Mass.  23 ; 
Vail  V.  R.  R.  Co.  106  N.  Y.  283 ;  Spect 
V.  Gregg,  51  Cal.  198;  Alemany  v. 
Daly,  36  Cal.  90. 

9  M.  &  C.  R.  R.  Co.  V.  Neighbors, 
51  Miss.  412;  Osgood  v.  Abbott,  58 
Me.  73;  Hubbard  v.  Hubbard,  97 
Mass.  188 ;  Guild  v.  Richards,  16  Gray 
(Mass.),  309;  Chalker  v.  Chalker,  1 
Conn.  79;  Willard  v.  Henry,  2  N.  H. 
120. 


CONDITIONS,   MMITATIONS    AND    RMSTEICTIONS,  445 

Conditions  arc  further  classed  as  expressed  and  implied,  the 
former  being  those  which  are  declared  in  express  terms  in  tlie 
deed  creating  the  estate,  and  the  latter  those  which  the  law 
implies,  either  from  their  being  always  understood  to  be  an- 
nexed to  certain  estates  or  as  annexetl  to  estates  held  under 
certain  circumstances. 

$^  4.  Operation  and  efTcet.  A  covenant,  condition  or  stipu- 
lation inserted  in  a  deed  delivered  to  and  accepted  by  the 
grantee  will  bind  him  to  a  due  observance  of  the  covenant  or 
performance  of  the  condition,  whenever  the  same  directly  re- 
lates to  the  land  embraced  in  the  conveyance,^  or  is  connected 
with  such  lands  and  those  immediately  adjoining.-  Such  agree- 
ments may  be  collateral  to  the  conveyance,  but  the}'  must  re- 
late to  the  premises  whose  title  is  transferred,  and  an  agree- 
ment touching  alien  lands  will  never  be  imputed  to  the  grantee. 
The  grantor  may  impose  a  restriction,  in  the  nature  of  a  servi- 
tude or  easement,  upon  the  land  which  he  sells  for  the  benefit 
of  the  land  he  retains;  and  if  that  servitude  is  imposed  on  the 
heirs  and  assigns  of  the  grantee,  and  in  favor  of  the  heirs  and 
assigns  of  the  grantor,  it  will  be  binding  upon,  and  may  be 
enforced  against,  any  subsequent  purchaser  of  the  property 
with  notice.' 

So  also  the  grantor  may  impose  a  servitude  or  condition  upon 
the  land  which  he  retains  and  in  favor  of  the  land  he  sells,  but 
the  principle  is  the  same;  and  when  an  owner  subjects  his  lands 
to  anv  servitude  and  transmits  them  to  others  charged  with 
the  same,  any  one  taking  title  to  such  lands  with  notice  of  the 
conditions  or  restrictions  affecting  their  use  or  the  method  of 
their  enjoyment  takes  subject  to  the  burdens  thus  imposed, 
and,  as  standing  in  the  place  of  his  grantor,  is  bound  to  do  or 
forbear  from  doing  whatever  his  grantor  should  do  or  should 
not  do.-* 

§  5.  Construction.  In  the  construction  of  conditions,  lim- 
itations and  restrictions  there  cannot  be  said  to  be  any  tech- 

•Kimpton  v.   Walker,   9  Vt.    191;  v.  Barton,  24  Ohio  St.  48;  Kellogg  v. 

Clark  V.  Martin,  49  Pa.  St.  289;  Stines  Robinson,  6  Vt.  27G. 

V.  Dorman,25  01iioSt.  580;  Disnmkes  ■'Whitney    v.  R.    R.    Co.    11   Gray 

V.  llalpern,  47  Ark.  ;317.  (Mass.),  359;  Clark  v.  Martin,  49  Pa. 

2Burbank   v.  Pillsbury,  48   N.  II.  St.  289;  Tliurston  v.   Minko,   32  MI. 

475;  Bronson  v.  Coffin,  108  Mass.  175;  487. 

Hazlettv.  Sinclair,  76  Ind.  488;  AValsb  *  Trustees  v.  Lynch,  70  N.  Y.  440. 


446  CONVEYANCE. 

nical  rule,  but  courts  are  bound  in  every  case  to  ascertain  the 
intent  of  the  parties  and  give  efTect  to  the  instrument  accord- 
ingly.•  A  special  intent  will  usually  prevail  over  a  general 
intent;  and  whenever  limitations,  carefully  stated,  and  a  gen- 
eral expression  are  applied  in  the  same  instrument  to  the  same 
subject-matter,  the  former,  by  a  well-established  rule  of  con- 
struction, are  made  the  superior  and  controlling  words  of  the 
deed.'- 

§  6.  Continued  —  Conditions  in  avoidance.  The  rule  is 
Avell  established  that  a  condition  to  avoid  an  estate  must  be 
taken  stricth'.  It  cannot  be  extended  beyond  its  express 
terms,  and  a  party  w^ho  insists  upon  the  forfeiture  of  an  estate 
under  a  condition  of  his  own  creation  must  bring  himself 
clearly  within  the  letter.'  No  act  not  embraced  within  the 
language  can  be  said  to  be  within  the  spirit  of  the  condition, 
nor  will  such  act  be  substituted  for  the  act  prohibited  by  its 
terms.*  In  every  case  the  language  should  be  strictly  con- 
strued, and  the  limitation  or  condition  have  only  a  literal  in- 
terpretation. 

§  7.  Continued  —  When  construed  as  covenants.  The  tend- 
ency of  modern  times  is  to  relax  the  stricter  rules  which 
raise  and  jrovern  conditions  and  to  construe  recitals  which 
limit  or  restrict  the  use  of  property  as  covenants  rather  than 
conditions.  Covenants,  like  conditions,  do  not  depend  upon 
precise  or  technical  words; '^  and  whatever  shows  the  intent  of 
the  parties  to  bind  themselves  to  the  performance  of  a  stipu- 

1  Hoyt  V.  Kimball,  49  N.  H.  323;  cu ted  to  a  party  a  lease  of  the  prem- 
Packard  v.  Ames,  16  Gray  (Mass.),  ises  for  ninety-nine  years,  and  also. 
327.  at  the  same  time,  gave  to  him  a  bond 

2  Bailey  v.  Close,  37  Conn.  403.  for  the  conveyance  of   tiie  property 

3  Jackson  v.  Silvernail,  15  Johns,  in  fee  after  the  expiration  of  the 
(N.  Y.)  278;  Snyder  v.  Hough,  27  limitation,  and  received  from  the 
Barb.  (N.  Y.)415;  Emerson  v.  Simp-  purchaser  the  price  tl)erefor,  held, 
sou,  43  N.  H.  473;  Voris  v.  Renshaw,  that  these  acts  of  the  grantee  were 
49  111.  425.                                           .  not  prohibited  by  the  condition,  and 

<  Where  the  grantor  in  a  deed  an-  hence  worked  no  forfeiture  of  tlie 

nexed  to  the  grant  a  condition  that  estate.     Voris    v.    Renshaw,   49    111. 

the  grantee  should  not  convey  the  425. 

propertj'  except  by  lease  for  a  terra  '"  Newcomb    v.    Presbrey,    8    Met. 

of  years  prior  to  a  certain  day  named  (Mass.)  406 ;  Davis  v.  Lyman,  6  Conn, 

therein,  and  the  grantee  afterwards  252;  Meyers  v.  Burns,  33  Barb.  (N. 

and  within  the  limited  period   exe-  Y.)  401. 


CONDITIONS,  LIMITATIONS    AND    RESTRICTIONS,  447 

lation  may  be  deemed  a  covenant  without  regard  to  the  form 
of  expression. •  A  covenant  or  condition  may  be  created  by 
the  same  words.^ 

It  is  a  well-established  rule  that  the  recitals  in  a  deed  will 
never  be  permitted  to  control  the  operation  of  the  instrument 
if  the  plain  intent  would  be  thereby  defeated;  and  further, 
that  courts  are  bound  in  every  case  to  ascertain  the  intent  of 
an  instrument  and  give  it  effect  accordingly.  Hence  if  a  con- 
dition is  plainlv  manifest  it  must  prevail;  but  the  authorities 
are  united  in  dechiring  that  a  recital  only  operates  as  a  condi- 
tion when  it  is  apparent  from  the  whole  scope  of  the  instru- 
ment that  it  was  intended  to  so  operate.  But  if  it  be  doubtful 
whether  a  clause  in  a  deed  be  a  covenant  or  a  condition,  courts 
will  incline  against  the  latter  construction; '  and  if  the  lan- 
guage employed  is  not  in  form  either  a  covenant  or  condition, 
the  clause  will  be  construed  as  a  covenant  rather  than  a  con- 
dition. 

A  conditional  stipulation  when  expressing  an  agreement,  as 
"  it  is  expressly  agreed  and  understood,''  will  usually,  although 
operating  as  a  restriction,  produce  also  a  covenant  personal 
to  the  grantee  if  there  be  no  clause  uniting  his  heirs,*  or  run- 
ning with  the  land  and  binding  the  successors,  according  to 
the  spirit  of  the  agreement,'  Notwithstanding  that  the  re- 
striction may  be  in  the  most  positive  and  emphatic  terms,  if 
it  clearl}^  imports  an  agreement  and  does  not  jirovide  for  re- 
entry or  forfeiture,  it  is  always  to  be  construed  as  a  covenant 
and  never  as  a  condition.*'  On  the  other  hand,  although  the 
stipulation  is  a  covenant  in  form,  yet  if  followed  by  a  clause 
of  forfeiture  it  will  be  construed  a  condition.'' 

iTaylorv.  Preston,  79  Pa.  St.  430;  Hoyt    v.    Kimball,   49    N.    H.    322; 

Hallet  V.  Wylie,  3  Johns.  (N.  Y.)  44;  Thornton  v.  Trammell,  39  Ga.  202. 

Bull  V.  Fallott,  5   Cow,  (N.  Y.)  170.  ■»  Skinner  v.  Shepard,  130  Mass.  ISO; 

But  wiiere  a  covenant  in  form  is  fol-  Norris  v.  Laberee,  58  Mo.  200 ;  Emer- 

lowed  by  a  clause  of  forfeiture  it  will  son  v.  Simpson,  43  N.  H.  475. 

be  construed  a  condition.     Moore  v.  *St.  Andrew's  Church  Appeal,  67 

Pitts,  53  N.  Y.   85;  Gray  v.  Blanch-  Pa.  St.  512;  Trustees,  etc.  v.  Cowen, 

aid,  8  Pick.  (Mass.)  284.  4  Paige,  Ch.  (N.  Y.)  510. 

-Hartung  V.  Witte,  18  N.  AV.  Rop.  '•  Anthony  v.  Stevens,  40  Ga.   241; 

175;  Parmelee  v.  R'y  Co.  2  S^'ld.  (X.  Fuller  v.  Arms,  45  Vt.  400;  Thornton 

Y.)  80;    Chapin   v.    Harris,  8   Allen  v.  Trammell,  39  Ga.   202;  Leach  v. 

(Mass.),  594.  Leach,  4  lud.  028. 

"Gallagher  v.  Ilcrbert,  117  III.  IGO;  '  Moore  v.  Pitts,  53  N.  Y.  85;  Grav 


448  CONVEYANCE. 

§  8.  Creation  of  conditions.  A  condition  must  be  distin- 
guished from  a  merely  restrictive  stipulation;  yet,  as  has  been 
said,  this  is  not  always  an  easy  matter  to  do.  The  recital  may 
in  effect  produce  a  condition  or  a  covenant,  or  it  mtxy  amount 
to  no  more  than  a  prohibitory  stipulation,  which,  although 
partaking  somewliat  of  the  nature  of  each  of  the  two  former 
classes,  operates  in  a  manner  different  from  either.^ 

By  long  and  almost  immemorial  usage  and  the  repeated  ad- 
judications of  courts,  a  condition  may  be  raised  by  the  employ- 
ment of  that  term,  the  usual  formula  being:  "  provided  always, 
and  this  deed  is  upon  the  express  condition."'  These  terms, 
"  provided  always,"  "  upon  the  express  condition,"  etc.,  have 
frequently  been  held  to  create  an  estate  upon  condition,'  un- 
less the  context  or  something  in  other  parts  of  the  deed  tends 
to  negative  this  idea.  So,  also,  the  words  "  if,"  "if  it  shall  so 
happen,"  or  other  equivalent  expressions,  when  relating  to 
conditions  depending  on  contingencies,  have  been  taken  and 
held  to  operate  in  the  same  manner.  These  expressions  are 
given  as  examples  by  the  elementary  writers,^  and  are  also  in 
common  use  by  the  profession.-^  The  language  employed, 
however,  except  as  it  ma}''  tend  to  disclose  intention,  is  com- 
paratively of  little  moment;  for  the  intention  of  the  parties 
when  apparent  will  always  control  technical  terms,"  greater 
regard  being  had  to  the  manifest  intention  than  to  any  par- 
ticular words  which  may  have  been  used  in  expressing  it;  and 
when  it  is  clear  that  technical  words  have  been  used  to  express 

V.    Blanchard,   8  Pick.   (Mass.)  284;  forever;  and  it  is  qualified  because 

Ayer  V.  Emery,  14  Alien  (Mass.),  69;  its  duration  depends  upon  collateral 

Hoyt  V.  Ketcham,  54  Conn.  60.  circumstances  which  qualif}'  and  de- 

1  Conditional   limitations    are    not  base    the    purity    of    the    donation, 

included  in  tlie  scope  of  these  para-  Wiggins  Ferry  Co.  v,  O.  &  M.  R'y 

graphs,  and  will    be    treated    sepa-  Co.  94  III.  83. 

rately.  <  4  Kent,  Com,  123;  2  Wash,   Real 

^  See  4  Kent's  Com.  122;  2  W^ash.  Prop.  3. 

Real  Prop.  3.  s  Hammond  v.    R'y  Co.   15  S.  C. 

3  The  estate  so  granted  is  sometimes  10;  Sohier  v.   Church,  109  Mass.  1; 

called  a  base  or  qualiiied  fee,  being  Hooper  v.  Cumniings,  45  Me.  359. 

such  as  has  a  qualification  subjoined  ^Callins    v.    Lavalle,    44  Vt.   230; 

thereto,  and  which  must  be  deter-  Episcopal  City  Mission  v.  Appleton, 

mined    whenever    the    qualification  117  Mass.  326;  Krantz  v.  McKnight, 

annexed  to  it  is  at  an  end.     It  is  a  51  Pa.  St.  232;  Saunders  v.  Hanes,  44 

fee  because  it  may  possibly  endure  N.  Y.  253, 


CONDITIONS,  LlMlTATlONa    AND    ItESTKICnONS.  449 

ideas  different  from  their  technical  signification,  courts  are 
ever  inclined  to  construe  them  according  to  such  intent.^ 

The  use  of  technical  words  whicii  in  themselves  import  con- 
ditions will  ordinarily  be  held  to  create  the  same,  for  technical 
words  are  presumed  to  be  used  iu  their  legal  sense  unless  there 
is  a  plain  intent  to  the  contiury;-  while  the  addition  of  a 
clause  of  re-entry  or  forfeiture  unmistakably  discloses  the 
nature  of  the  i-ocital.^  I>ut  this  clause  is  by  no  means  neces- 
essary  if  the  character  of  the  condition  is  otherwise  estab- 
lished, for  forfeiture  follows  a  condition  subsequent  upon  its 
breach  by  operation  of  law;^  yet  the  presence  or  absence  of 
this  clause  has  an  important  bearing  upon  the  question  whether 
the  recital  constitutes  a  condition  or  a  covenant  or  simply  a 
stipulation,  and  may  be  considered  with  other  matters  in  so 
determining.' 

It  may  be  stated,  therefore,  that  no  particular  form  of  words 
is  necessary  to  create  a  condition,  and  that  the  only  essential 
feature  is  that  the  intention  so  to  create  shall  be  clearly  ex- 
pressed in  some  words  importing  ejo  vi  termini  that  the  vesting 
or  continuance  of  the  estate  or  interest  is  to  depend  upon  a 
contingency  provided  for.^ 

Where  certain  clauses  clearly  constitute  conditions,  other 
stipulations,  not  put  in  the  form  of  conditions,  will  generally 
betaken  as  merely  constituting  covenants;"  and  the  rule  is 
that,  in  deciding  between  covenants  and  conditions  in  doubtful 
cases,  the  writing  shall  be  held  to  be  a  covenant,  upon  the 
theory  that  a  condition,  as  tending  to  destroy  the  estate,  would 
be  less  favorable  to  the  grantee.  But  where  the  terms  are  dis- 
tinctly and  ])lainly  terms  of  condition,  where  the  whole  pro- 

1 R.  R.  Co.    V.  Beal,   47   Cal.    151;  deed,    is   otiierwise.     Episcopal  City 

Churchill   v.    Reamer,  8  Bush  (Kj'.),  Mission  v.  Appleton,  117  Mass.  32G. 
aie.  ^  Emerson   v.    Simpson,  43  N.  H. 

2  Butler    V.    Huestis,    68    111.    594;  475. 
France's  Est  ate,  75  Pa.  St.  220.  While       ••Jackson  v.  Allen,  3  Cow.  (N.  Y.) 

the   words    "upon   condition,"   in  a  220;    Gray    v.    Blanchard,    8    Pick, 

conveyance  of  real   estate,  are  apt  (Mass.)  284;  Osgood  t.  Abbott,  o  ^e. 

words    to    create    a  condition,   any  73. 

breach  of  which   will  iorfeit  the  es-       *  Hartung  v.  Witte,  IS  N.  W.  Rep. 

tate,  yet  they  are  not  to  be  allowed  175. 

that  effect  when  the  intention  of  the       *  Lyon  v.  Herscy,  103  N.  Y.  204. 
grantor,  as  manifested  by  the  whole       'St.  Louis  v.  Ferry  Co.  88  Mo.  615. 
29 


450  CONVEYANCE. 

vision  precisely  satisfies  the  requirements  of  the  definition,  and 
where  the  transaction  has  nothing  in  its  nature  to  create  any 
incongruity,  there  is  no  room  for  refinement  and  no  ground 
for  refusing  to  assign  to  the  subject  its  predetermined  legal 
character.^  The  law  attaches  to  the  act  and  ascribes  to  it  a 
definite  significance;  and  the  parties  cannot  be  heard  to  say, 
where  there  is  neither  imposition,  fraud  nor  mistake,  that,  al- 
though they  deliberately  made  a  condition  and  nothing  but  a 
condition,  they  yet  meant  that  it  should  be  exactly  as  a  cove- 
nant.'^ 

§  9.  Revesting  of  estate.  A  mere  breach  of  any  or  all  of 
the  conditions  upon  which  an  estate  has  been  conveyed  will 
not  have  the  effect  to  revest  the  title  in  the  grantor.'  lie  has 
an  option  to  declare  a  forfeiture,  but  this  right  he  may  waive 
either  by  express  act  or  passive  acquiescence.*  The  authorities 
are  unanimous  in  declaring  that,  to  render  the  breach  effectual 
and  revest  an  estate  forfeited  as  for  conditions  broken,  requires 
some  action  on  the  part  of  the  grantor.  If  he  is  not  in  pos- 
session he  must  make  an  entry,  or  by  some  act  equivalent 
thereto  assert  a  continual  claim,  manifesting  a  determination 
to  take  advantage  of  the  breach;^  if  in  possession,  he  must 
in  some  manner  evidence  an  intent  to  hold  possession  by  rea- 
son of  the  breach.*^  Until  this  has  been  done  the  grantee  holds 
his  estate,  liable  onl^'  to  be  defeated,  but  not  actually  deter- 
mined by  a  forfeiture.^ 

A  simple  entry  upon  the  land,  made  with  intent  to  forfeit 

1  Merrit  v.  Harris,   102  Mass.  326 ;  time  after  the    termination  of  the 

Allen  V.  Florence,  16  Johns.  (N.  Y.)  estate;  and  particularly  where  the 

47;  Blanchard  v.  R.  R.  Co.  31  Mich,  grantee  is  permitted  to  make  valu- 

51;  Wheeler  V.  Walicer,  2  Conn.  196;  able  improvements  after  the  condi- 

Mead  v.  Ballard,  7  Wall.  (U.  S.)  290.  tion  is  broken.     Kenner  v.  American 

^  Blanchard  v.  R.  R.  Co.  31  Mich.  43.  Contract  Co.  9  Bush  (Ky.),  202. 

3  M.   &  C.  R.  R.  Co.  V.  Neighbors,  ^  m.  &  C.  R.  R.  Co.   v.  Neighbors, 

51  Miss.    412;  Kenner  v.    American  51  Miss.   412;  Osgood  v.  Abbott,  58 

Contract  Co.  9  Bush  (Ky.),  202;  Guild  Me.  78. 

v.  Richards,  82  Mass.  (16  Gray)  309;  6  Hubbard   v.    Hubbard,    97  Mass. 

Osgood  V.  Abbott,  58  Me.  73.  188. 

4 Coon  V.  Brickett.  2  N.  H.  163.  The  ^ Stone  v.  Ellis,  9  Cush.  (Mass.)  95; 

waiver  of  a  forfeiture   may   be  in-  Memphis,  etc.   R.   R.  Co.  v.    Neigh- 

ferred  from  the  failure  of  the  party  bors,  51  Miss.  412;  SpoflFord  v.  True, 

entitled  to  the  estate  to  re-enter  or  33  Me.  283;  Spect  v.  Gregg,  51  Cal. 

assert  some  claim   in   a   reasonable  198. 


CONDITIONS,   LIMM  AIKiNb    AND    RESTRICTIONS,  451 

the  grant, accompanied  by  some  unequivocal  actor  statement, 
will  be  sufficient  to  work  a  forfeiture;'  but,  as  the  intention 
to  forfeit  is  the  vital  and  controlling  ])rinciple,  such  intention 
must  in  every  case  aflirinutively  appear.-  An  actual  entry, 
however,  does  not  seem  to  be  essential ;  for  the  breach  of  con- 
dition has  the  efTcct  to  create  a  right  of  action  which  the 
grantor,  even  witliout  an  actual  entry  or  a  previous  demand, 
can  enforce  by  a  suit  for  the  land.' 

§  10.  Who  may  take  advantage  of  condition  broken.  By 
the  rules  of  the  common  law,  which  discouraires  maintenance 
and  litigation,  nothing  that  lies  in  action,  entry  or  re-entry 
can  be  granted  over;  and  while  this  rule  has  in  many  instances 
been  greatly  relaxed  and  changed,  it  still  holds  good  with  re- 
gard to  conditions,  and  no  grantee  or  assignee  of  a  reversion 
can  take  advantage  of  a  re-entry  b}'  force  of  a  condition 
broken.  The  privilege  is  confined  to  the  grantor  and  his 
heirs,  who  alone  may  take  steps  to  forfeit  the  estate;  and  if 
they  neglect  or  refuse  so  to  do,  the  title  remains  in  the  grantee 
for  all  practical  purposes  unimpaired.'' 

§  11.  Who  may  perform.  Generally,  any  one  may  per- 
form a  condition  who  has  an  interest  in  it,  or  in  the  land 
whereto  it  is  annexed;'*  and  when  a  condition  is  once  per- 
formed, unless  it  is  one  which  requires  continuous  perform- 
ance, it  is  thenceforth  entirely  gone,  and  the  thing  to  which 
it  was  before  annexed  becomes  absolute  and  wholly  uncondi- 
tional.** 

§  12.  Prevention  of  performance.  The  rule  at  law  is  that 
if  a  condition  subsequent  be  possible  at  the  time  of  making  it, 

1  Where  a  grantor  in  a  conditional  was  not  such  an  entry  for  breach  of 

deed  went  upon  the  land  with  two  condition  as  would  revest  the  estate 

witnesses  for  condition  broken,  and  in   the  grantor.     Guild  v.  Richards, 

there  notified  the  grantee  that  pos-  82  Mass.  309. 

session  would  be  taken  for  the  break-  *Ruch  v.  Rock  Island,  97  U.  S.  093. 

ing  of  a  condition  in  the  deed,  AeZJ,  ^  Smith   v.  Braunau,   13  Cal.    107; 

that  these  acts  were  a  sufficient  entry  Gray  v.  Blanchard,   8  Pick.  (Mass.) 

lo  revest  the  estate  in  lier.     Jenks  v.  284;  Merritt  v.  Harris,  102  Mass.  328; 

Walton,  64  Me.  97.  Hooper  v.    Cummings,  45  Me.  359; 

-Thus,  it  was  held  that  the  simple  Norris  v.  Milnei*,  20  Ga.  563;  Towne 

act  of  turning  cattle  upon  land  while  v.  Bowers,  81  Mo.  491. 

unimproved     and     uninclosed,     and  &  Joslyn  v.  Parlin,  54  Vt.  670. 

using  the  land  wliile  in  tliat  ;itate  as  ^Vermot     v.    Gospel     Society,     2 

a  means  of  access  to  adjoining  laud,  Paine  (C.  Ct.),  545. 


452  CONVEYANCE. 

and  becomes  afterwards  impossible  to  be  complied  with  by 
the  act  of  God,  or  the  law,  or  the  grantor,  the  estate,  once 
vested,  is  not  thereby  divested,  but  becomes  absolute.'  But 
equity  may  apply  this  rule  in  the  interests  of  justice  merely 
to  the  extent  of  enlarging  the  time  for  performance,  where  it 
has  been  hindered  at  the  time  when  it  should  have  been  exe- 
cuted.2 

If  performance  is  prevented  by  the  act  of  the  grantor  the 
grantee  is  excused.^ 

§  13.  Time  of  performance.  If  no  time  is  mentioned  for 
the  performance  of  the  condition  the  general  rules  relating 
to  agreements  would  seem  to  properly  apply,  and,  notwith- 
standing that  it  has  been  intimated  the  grantee  under  such 
circumstances  might  have  his  whole  life-time,*  it  would  appear 
that  the  act  should  be  performed  within  a  reasonable  time.' 
The  circumstances  of  the  grant  and  the  situation  of  the  par- 
ties will,  in  most  instances,  be  a  sufficient  guide  to  point  out 
what  is  a  reasonable  time."  Where  compliance  with  the  con- 
dition requires  a  continuous  performance,  and  such  performance 
is  discontinued,  the  same  must  be  resumed  in  a  reasonable  time 
in  order  to  prevent  a  forfeiture  of  the  estate." 

Where  a  grant  is  made  for  a  specific  purpose,  not  creating  a 

1  Hughes  V.  Edwards,  9  Wheat,  to  comply  with  the  condition.  Hay- 
(U.  S.)  489;  Merrill  v.  Emory,  10  den  v.  Stough ton,  5  Pick.  (Mass.)  528. 
Pick.  (Mass.)  507;  Gadberry  v.  Shep-  ^  Adams  v.  Copper  Co.  7  Fed.  Rep. 
ard,  27  Miss.  203.  684.     A  lot  of  land  was  granted  on 

2  Davis  V.  Gray,  16  Wall.  (U.  S.)  condition  that  it  should  be  held  for 
203.  the  support  of  the  minister  preaching 

3  Houghton  V.  Steele,  58  Cal.  421 ;  in  a  certain  church,  or  in  any  church 
Jones  V.  R.  R.  Co.  14  W.  Va.  514 ;  subsequently  to  be  erected  upon  the 
Elkhart  Car  Works  V.  Ellis,  113  Ind.  same  site;  the  proprietors  of  the 
215.  church  took  it  down  and  erected  a 

■•  Hamilton  v.  Elliott,  5  Serg.  &  R.  new  one  upon  a  different  lot,  and  al- 

(Pa.)  383.  lowed  the  church  lot  to  remain  vacant 

■'>  Hayden    v.    Stoughton,    5   Pick,  for  more  than  three  years.    Held,  that 

(Mass.)  528;  Ross  v.  Tremain,  2  Met.  the  condition  was  broken,  althougli 

(Mass.)  495.  the  proprietors  voted  that  the  church 

*  Real  estate  was  devised  to  a  town  lot  should  be  reserved  for  the  erection 

for  the  purpose  of  building  a  school-  of  a  church  whenever  they  might 

house,  and  upon  condition  subsequent  deem  it  expedient.     Austin  v.  Can> 

that  it  should  be  built  upon  a  certain  bridgeport  Parish,   21  Pick.    (ISIas.-.) 

spot.     Held,  that  this  condition  was  215. 
broken  by  a  neglect  for  twenty  years 


CONDITIONS,  LIMITATIONS    AND    RKSTRICTIONS.  453 

technical  condition,  us  where  no  words  of  forfeiture  or  re-entry 
are  used,  it  would  seem  thut  where  the  grant  is  unc(jnditionaI 
as  to  the  time  when  the  land  granted  must  be  used,  and  with- 
out limit  as  to  the  time  when  tlie  use  must  begin,  it  cannot  bo 
forfeited  for  non-user  for  the  parties  not  having  annexed  any 
conditions  to  the  grant  in  this  respect  at  the  time  it  was  made, 
courts  will  not  undertake  to  supply  them  by  implication.^ 

g  14.  Conditions  in  restraint  of  alienation.  By  the  iron 
rule  of  tiie  feudal  law  the  grantee  of  a  feud  possessed  no  power 
of  alienation,  and  upon  his  death  the  land  reverted  to  his  su[)e- 
rior  lord.  This  rigorous  rule  in  time  became  modified  so  as  to 
permit  an  inheritance  by  the  grantee's  heirs,  but  with  the  right 
of  reversion  on  the  extinction  of  his  blood;  and  as  there  al- 
ways remained  in  the  grantor  a  possibility  of  a  reverter,  this 
was  considered  such  an  interest  in  the  land  as  entitled  him  to 
restrict  the  power  of  alienation.  And  so  the  law  remained 
until  the  enactment  of  what  is  known  as  the  statute  quia  einp- 
tot-esr  This  statute  cut  off  the  ])ossibility  of  reverter  by  giv- 
ing to  every  freeman  the  right  to  sell  his  land*;  at  his  own 
pleasure,  so  that  his  feoffee  should  hold  them  of  the  chief  lord 
by  the  same  service  and  customs  as  the  feoffor  held  them  be- 
fore. The  possibilit}^  of  reverter  having  thus  been  destroyed, 
the  grantors  interest  in  the  land  ceased,  and  he  was  no  longer 
able  to  prohibit  the  right  of  alienation. 

Since  the  enactment  of  the  statute  quia  emptores^  therefore, 
no  conditions  or  restrictions  in  a  conveyance  of  the  fee  which 
prohibits  the  alienation  of  land  have  been  allowed  to  have  any 
effect,  ami,  being  repugnant  to  the  estate  granted,  are  con- 
sidered void  upon  that  ground  alone. ^  This  principle  is  well 
established  in  the  jurisprudence  of  every  American  state,  and 
has  on  several  occasions  been  re-affirmed  by  the  supreme  court 
of  the  United  States. 

But  while   no  dissent  has  been  expressed  to  the  rule  in  a 

iRaleyv.  Umatilla  Couuty,  15  Oreg.  Michael,    6    N.    Y.   467.      See,   also, 

172.  McCullough   V.  Gilinore,    11    Pa.  St, 

2  Enacted  in  1290,  18  Edw.  I.  ch.  1.  370;  Bank  v.  Davis,  21  Pick.  (Mass.) 

3  For  a  very  elaborate  and  exhaust-  42;  McCleary  v,  Ellis,  54  Iowa,  311; 
ive  discussion  of  this  question,  see  Norris  v.  Hensley,  27  Cal.  439;  An- 
Mandlebaum  V.  McDonnell,  29  Mich,  dorson  v.  Carey,  36  Ohio  St.  506; 
78.  The  same  subject  is  very  fully  Doebler's  Appeal,  64  Pa.  St.  623; 
considered    also    in    De  Peyster  v.  Smith  v.  Clark,  10  Md.  186. 


454:  CONVEYANCE. 

general  sense,  an  entire  harmony  does  not  prevail  on  the  sub- 
ject of  partial  restraints  —  that  is,  restraints  against  alienation 
for  a  limited  time,  or  to  certain  persons,  or  to  any  but  certain 
persons;  and  while  some  cases  strenuously  insist  that  the  power 
of  disposal  cannot  be  arrested  for  a  single  day,^  equally  well- 
considered  cases  insist  that  such  restrictions,  if  reasonable,  are 
valid  and  of  binding  cfTect.^  This  latter  class  of  cases  follow 
mainly  the  modern  English  precedents,  and  are  available,  if 
at  all,  only  in  case  of  gift  or  devise;  but  it  is  difficult  to  per- 
ceive, on  principle,  why  a  partial  restraint  is  not  just  as  in- 
compatible with  the  idea  of  complete  ownership  as  a  general 
restraint. 

To  render  a  restraint  of  this  character  effective  it  is  always 
necessary  that  there  be  a  reversion  or  limitation  over,  for  other- 
"wise  there  would  be  no  one  to  enforce  obedience,  and  the  pro- 
hibition would  be  wholly  nugatory.^  So,  too,  the  intention  to 
create  a  condition  must  be  apparent;  the  words  •'  upon  condi- 
tion," or  other  words  of  equivalent  meaning,  should  appear,  or 
there  should  be  a  clause  providing  for  forfeiture  and  re-entry, 
these  being  the  usual  indications  of  an  intent  to  create  a  con- 
dition subsequent.  If  none  of  these  circumstances  are  present, 
the  mere  fact  that  the  deed  is  made  in  whole  or  in  part  upon 
the  consideration  that  the  grantee  shall  not  for  a  certain  pe- 
riod sell  or  convey  the  property  would  not  be  sufficient  to 
create  a  condition. 

§15.  Coutiuued  —  With  respect  to  persons.  While  the 
general  principle  that  the  conveyance  of  an  estate  in  fee-sim- 
ple imports  absolute  ownership  in  the  grantee,  and  that  any 
restriction  or  condition  imposed  inconsistent  with  or  repug- 
nant to  the  estate  so  granted  is  void,  seems  to  have  been 
adopted  as  a  universal  rule  of  law,  it  has  nevertheless  been 
held  in  England  from  very  early  times  that  partial  restraints 
may  properly  be  annexed  to  a  grant  of  the  fee,  and  that  the 

1  Mandlebaum    v.    McDonnell,    29  Intl.  360;  Siramonds  v.  Simmonds,  3 

Mich.  78 ;  and  see  Oxley  v.  Lane,  Zo  Met.   (Mass. )   562 ;  and  see  Gray   v. 

N.    Y.    347;    Anderson  v.    Gary,    86  Blanchard,  8  Pick.  (Mass.)  28-4;  Dou- 

Ohio  St.  506.  gal  v.  Fryer,  3  Mo.  40. 

2Gowell  V.  Springs   Go.  100  U.  S.  apace  v.  Pace,  73N.  G.  119;  Tilling- 

55;  Hunt  v.  Wright,  47  N.  H.  396;  hast  v.  Bradford,  5  E.  I.  205. 
Langdon   v.   Ingram's  Guardian,  28 


CONDITIONS,  LIMITATIONS    AND    EESTEICTI0N8.  455 

grantee  may  not  disregard  such  partial  restraint  under  pen- 
alty of  forfeiture  of  liis  estate.  This  doctrine  has  also  been 
recognized  in  some  of  the  American  states,  and  in  a  number 
of  instances  it  has  been  held  that  a  condition  not  to  alien  to  a 
particular  person  or  persons  is  valid,'  though  it  would  seem 
that  a  condition  not  to  alien  except  to  particular  persons 
would  be  inoperative  and  void.'  From  these  authorities  the 
rule  would  seem  to  be  that  a  condition  is  valid  if  it  permits 
alienation  to  all  the  world  with  the  exception  of  selected  indi- 
viduals or  classes,  but  is  invalid  if  it  allows  of  alienation  only 
to  selected  individuals  or  classes.'  The  authorities,  however, 
are  not  agreed  even  upon  these  propositions,  and  the  reports 
abound  in  many  conflicting  decisions. 

§  15.  Continued  —  With  respect  to  time.  Restraints  with 
respect  to  time  have  in  several  instances  been  held  good  and 
the  conditions  sustained,*  provided  the  restriction  is  limited  to 
a  "reasonable  period;"'^  but  the  weight  of  authority  would 
seem  to  be  against  the  validity  of  restraints  upon  alienation, 
however  limited  in  time.'' 

§  IG.  Coiitiiiued  —  Considered  in  connection  with  pre- 
scribed and  prohibited  uses.  A  grant  of  land  for  a  prescribed 
use  does  not  necessarih^  iii^ply  a  condition,  although  such 
grants  are  usually  coupled  with  conditions,  and  not  infre- 
quently with  stipulations  for  re-entry  and  forfeiture.  But  the 
rule  is  fundamental  that  an  estate  upon  condition  cannot  be 
created  by  deed,  except  where  the  terms  of  the  grant  will  ad- 
mit of  no  other  reasonable  interpretation ;  therefore,  merely 
reciting  in  a  deed  made  upon  an  expressed  consideration,  how- 
ever small,  that  tlie  grantee  is  to  do  certain  things  or  that  the 
property  is  to  be  used  for  certain  specified  purposes,  is  not  an 
estate  upon  condition,  not  being  in  terms  upon  condition,  nor 

iCowell  V.    Col.    Springs   Co.    100  ••  Stewart  v.  Brady,  3  Bush  (Ky.). 

U.  S.  55 ;  Gray  v.  Blanchard,  8  Pick.  623 ;  Dougal  v.  Fryer,  3  Mo.  40 ;  Laug- 

(Mass.)  284;    Jackson  v,  Schutz,  18  don  v.  Ingram,  28  Ind.  3G0. 

Johns.    (N.    Y.)    174;    Jauretche    v,  s  Gray  v.  Blanchard,  8  Pick.  284. 

Proctor,  48  Pa.  St.  460.  6  Rooseyelt  v.  Thurman,  1   Johns. 

2  Anderson  v.    Cary,    36   Ohio  St.  Ch.  (N.  Y.)  220;  Oxley  v.  Lane,  35 

506;  McCuUough  v.  Gilmore,  11  Pa.  N.  Y.  340;  JIandlebaum  v.  McDonell, 

St.  370.  29   Mich.   78;  Anderson  v.  Cary,  86 

^  Sec  Gray  on  Restraints  on  Alieua-  Ohio  St.  506. 
lion,  33. 


456  CONVEYANCE. 

containing  a  clause  of  reentry  or  forfeiture.^  Numerous  cases 
may  be  found  in  the  books  where  this  doctrine  has  been  rec- 
ognized and  applied ;  and  while  courts  will  usually  lend  them 
aid  to  effectuate  and  carry  out  expressed  intentions,  yet  as  the 
rule  in  regard  to  forfeitures  for  breach  of  condition  is  one  of 
the  technical  rules  of  the  common  law  which  has  never  been 
favored  by  the  courts  of  this  country,  and  which  has  always 
been  strictly  construed  whenever  invoked,  unless  it  clearly  ap- 
pears that  the  prescribed  use  was  intended  to  be  a  condition 
subsequent  created  by  apt  words,  courts  will  refuse  to  enter- 
tain jurisdiction  for  forfeiture  or  re-entry,  and  in  like  manner 
will  refuse  to  supply  conditions  by  implication  when  they  were 
not  annexed  at  the  time  the  grant  was  made.'^ 

Where,  however,  the  deed  provides  that  the  land  shall  be 
forfeited  and  revert  if  used  for  other  purposes  than  those  speci- 
fied, a  condition  is  thereby  created,^  and  upon  proof  of  breach 
the  grantor  may  re-enter  and  repossess  the  land."* 

§17.  Continued  —  Intoxicants.  The  current  of  modern 
authority  sustains  the  proposition  that,  where  a  deed  conveys 
land  in  fee,  but  upon  the  express  condition  that  neither  the 
grantee  nor  his  heirs  or  assigns  shall  ever  sell  or  permit  to  be 
sold  any  intoxicating  liquors  upon  the  premises  conveyed,  and 
that  the  grant  shall  be  forfeited  and  the  land  revert  back  to 
the  grantor  whenever  such  condition  shall  be  broken,  the  es- 
tate so  conveyed  is  an  estate  upon  condition  subsequent;  that 
the  condition  is  valid,  and  until  broken  runs  with  the  land, 
and  is  binding  not  only  upon  the  grantee  himself  but  also 
upon  his  assigns,  and  that  the  land  may  be  recovered  back  by 
the  grantor  from  the  grantee  or  from  any  assignee  of  his  who 
may  commit  a  breach  of  said  condition.® 

1  Taylor  v.   Binford,   37  Ohio  St.  2Raley    v,    Umatilla    County,    15 

263,  where  a  conveyance  for  the  use  Oreg.  173;  and  see  Emerson  v.  Simp- 

of  school  purposes  only  was  held  not  son,    43    N.    H.    475;    Gadberry    v. 

to  create  a  condition ;  Carter  v.  Bran-  Sheppard,  27  Miss.  203 ;  Wood  worth 

son,  79  Ind.  14,  where  property  was  v.  Payne,  74  N.  Y.  196. 

deeded  to  the  use  of  Society  of  Friends  ^Hoyt  v.  Ketcham,  54  Conn.  60 

as  long  as  needed ;  and  see  Packard  Gilbert  v.  Peteler,  38  N.  Y.  165. 

V.  Ames,  16  Gray  (Mass.),  327;  M.  E.  '♦Plumb  v.  Tubbs,  41  N.  Y.  443 

Church  V.  Public  Ground  Co.  103  Pa.  Collins  v.  Marcy,  25  Conn.  242;  Gray 

St.  608;  Brown  v.   Caldwell,  23  W.  v.   Blanchard,   8  Pick.   (Mass.)  284 

Va.  187 ;  Thornton  v.  Trammell,  39  Sperry  v.  Pound,  5  Ohio,  189. 

Ga.  202.  ^  O'Brien  v.  Wetherell,  14  Kan.  616 


CONDITIONS,   LIMITATIONS    AND    KKSTRICTIONS.  457 

§  18.  ('ouilitioiial  limitations.  An  estate  upon  condition 
dilTers  from  what  is  known  as  a  conditional  limitation,  or,  as 
it  is  sometimes  called,  a  determinable  fee.  The  estate  in  either 
case  is  conditional,  but  the  distinction  is  that  the  former,  wiiile 
liable  to  defeat,  yet  rer]uires  some  act  to  be  done  by  the  per- 
son who  has  the  ri^ht  to  avail  himself  of  the  condition,  and 
is  not  in  fact  determined  until  tlicre  has  been  an  entry  or 
some  other  equivalent  demonstration;  the  latter,  on  the  con- 
trary, is  determined  by  operation  of  law  without  any  act  by 
any  person,  and  ceases  to  exist  upon  the  happening  of  the 
event  by  which  its  limitation  is  measured.'  In  the  former  the 
reservation  can  only  be  made  to  the  grantor  or  his  heirs,  who 
alone  can  take  advantage  of  a  breach  of  the  condition,-  while 
a  stranger  may  have  the  benefit  of  a  limitation.' 

The  provision  for  re-entry  is  the  distinctive  characteristic  of 
an  estate  upon  condition;  and  when  it  is  found  that  by  an}'- 
form  of  expression  the  grantor  has  reserved  the  right  upon 
the  happening  of  any  event,  to  re-enter  and  thereby  revest  in 
himself  his  former  estate,  it  may  be  construed  as  such.* 

§19.  Restrictive  stipulations.  There  is  another  class  of 
recitals,  which,  though  j)artaking  of  the  nature  and  employ- 
ing much  the  same  language  as  both  covenants  and  condi- 
tions, has  yet  been  accorded  an  operation  and  effect  different 
from  either.  Neither  legislative  nor  judicial  learning  has  yet 
given  them  a  distinctive  name,  and  pcrhai)s  they  cannot  be 
better  described  than  stipulations  operating  b}'^  way  of  restric- 
tion. In  some  instances  such  recitals  have  the  effect  of  real 
or  personal  covenants,  but  more  frequently  they  are  taken  as 
part  of  the  description  of  the  estate  granted,  and  which  pre- 
clude the  grantee  and  those  claiming  under  him  from  doing 
any  act  in  violation  of  the  restrictions. "*     This  is  particularly 

Plumb  V.  Tubbs,  41  N.  Y.  442;  Cow-  Gray  v.   Blanchrad,   8  Pick.   (Mass.) 

ell  V.  Colorado  Springs  Co.  100  U.  S.  284;  Hooper  v.   Cuinuiiiigs,    45  Me. 

55;  Collins  V.  Marcy,  25  Conn.  242.  339. 

•Brattle   St.    Church  v.    Grant,    3  » Southard  v.  R.  R.  Co.  20  N.  J.  L. 

Gray  (Mass.),  140;  :Miller  v.  Levi,  44  1:  Owen  v.  Field,  102  Mass.  90. 

N.  Y.  489;  Henderson  v.   Hunter,  59  <  Att'y-Geu'i  v.  Merrimack  Co.   14 

Pa.    St.    340;  Osgood    v.    Abbott,   58  Gray  (M:iss.).  58G. 

Me.  73;  Wheeler  v.  Walker,  2, Conn.  »  Fuller  v.  Arms,  45  Vt.  400;  War- 

196.  ren  v.  •\Ieyer,  22  Iowa,  351. 

2  Smith  V.   Brannan,   13   Cal.    107; 


458  CONVEYANCE. 

true  where  the  recital  creates  rights  in  the  nature  of  easements 
for  the  benefit  of  the  land  retained.^  In  such  recitals  the  use 
of  the  technical  words  "conditioned,"  "provided,  however,'' 
etc.,  have  no  other  or  further  effect  than  to  produce  a  restric- 
tion which  those  who  take  the  estate  are  bound  to  observe. 
No  forfeiture  follows  upon  the  violation  or  breach  of  the  stip- 
ulation; nor  will  the  grantor  ordinarily  have  a  right  of  action, 
as  for  covenant  broken,  but  equity  will  restrain  the  violation 
or  enforce  the  performance  of  the  stipulation  according  to  its 
terms.^  This  procedure  is  most  in  accordance  with  the  spirit 
of  the  times,  and  is  manifestly  the  true  remedy  for  the  breach 
of  even  an  acknowledged  condition  subsequent.  The  general 
effect  of  this  class  of  stipulations,  together  with  their  practical 
application,  will  be  treated  in  the  subsequent  paragraphs  in 
connection  with  the  other  phases  of  the  subject. 

§  20.  llestrictioiis  on  use.  As  has  been  shown,  so  long  as 
the  beneficial  enjoyment  of  an  estate  conveyed  is  not  materi- 
ally impaired,  any  reasonable  condition  prescribing  the  mode 
of  its  use  will  be  valid.  A  covenant  in  restraint  of  trade  is 
valid  if  it  imposes  no  restriction  upon  one  party  which  is  not 
beneficial  to  the  other,  and  was  induced  by  a  consideration 
which  made  it  reasonable  for  the  parties  to  enter  into;  and 
the  covenant  will  be  enforced  if  a  disregard  thereof  by  the 
covenantor  will  work  injury  to  the  covenantee.^  And  so, 
where  a  grantee  binds  himself  by  a  covenant  in  his  deed  limit- 
ing the  use  of  land  purchased  in  a  particular  manner  so  as  not 
to  interfere  with  the  trade  or  business  of  the  grantor,  the  cove- 
nant is  valid  and  binding  not  only  as  between  the  parties  but 
their  privies  as  well,  and  may  be  enforced  against  a  grantee 
of  the  covenantor  taking  title  with  notice  of  the  restriction ; 
and  this  although  the  assio:nees  of  the  covenantor  are  not 
mentioned  or  referred  to.* 

1  Dorr  V.  Harrahan,  101  Mass.  531 ;  Allen  (Mass.),  341 ;  Burbank  v.  Pills- 
Phcenix  Ins.  Co.  v.  Continental  Ins.    bury,  48  N.  H.  475. 

Co.,  14  Abb.  Pr.  (N.  Y.)  N.  S.  266;  *  Trustees  v.  Lynch,  70  N.  Y.  440. 

Seymour  v.  McDonald,  4  Saudf.  Ch.  As  where  N.  was  the  owner  of  cer- 

(N,  Y.)  502.  tain    lands    containing    deposits    of 

2  Trustees  v.  Cowen,  4  Paige,  Ch.  building  sand,  and  the  sale  of  the 
(N.  Y.)  510.  sand  constituted  his  only  business. 

3  Chappel  V.  Brockway,  21  Wend.  S.  olf ered  to  purchase  a  small  parcel 
(N.  Y.)  157;  Parker  v.  Nightingale,  6  of  the  land,  but  N.  dechned  to  sell  on 


CONDITIONS,  LIMITATIONS    AND    KESTEIOTIONS.  459 

Nor  does  it  seem  necessary,  in  order  to  cLarge  third  parties, 
that  a  covenant  of  this  character  should  be  one  technically 
running  Avith  the  land;  it  is  suflicient  that  subsequent  pur- 
chasers have  notice  of  it.  It  is  said  that  this  doctrine  and  the 
cases  which  supjjort  it  proceed  upon  the  principle  of  prevent- 
ing a  party  having  knowledge  of  the  just  rigiits  of  another 
from  defeating  such  rights,  and  not  upon  the  idea  that  the  on- 
^aiiements  enforced  create  easements  or  are  of  a  nature  to 
run  with  the  land;  and  in  tlie  exercise  of  its  ample  powers  a 
court  of  equity  may  impose  the  burden  of  a  covenant  relating 
to  lands  on  the  alienee  of  such  lands,  on  a  principle  altogether 
aside  from  the  existence  of  an  easement  or  tlie  capacity  of 
such  covenant  to  adhere  to  the  title.' 

§  21.  Contiiiued  —  Biiiltliiig  restrictions.  An  important 
class  of  the  stipulations  now  under  consideration  is  found  in 
the  clauses  often  inserted  in  deeds  to  secure  uniformity  in  street 
fronts,  a  pleasing  correspondence  in  the  architecture  of  contig- 
uous buildings,  or  to  secure  light,  ventilation  or  unobstructed 
views  of  a  neighborhood.  Such  clauses  have  a  wide  range  of 
operation  and  a  great  diversity  of  character,  but  all  come  as  a 
I'ule  under  the  generic  term  of  "  building  restrictions."'  They 
are  designed  ordinarily  to  prevent  such  use  of  the  premises  by 
the  grantee  and  those  claiming  under  him  as  might  diminish 
the  value  of  the  residue*  of  the  land  belonging  to  the  grantor 
or  impair  its  eligibility  for  particular  purposes,  and  in  this  re- 
spect they  partake  somewhat  of  the  character  of  a  reservation 
annexed  to  and  forming  a  part  of  the  description  of  the  estate. 
In  framing  such -clauses  provision  is  rarely  made  either  for 
forfeiture  or  re-entry,  and  even  where  such  provision  is  made  its 
operation  will  usually  be  denied  where  other  adequate  remedies 
exist. 

The  exact  effect  to  be  given  to  this  class  of  stipulations  is  not 

tlie  ground  tliat  it  would  iuterfere  ever,   had  notice  before   takiug    his 

with  his  business,     b.  agreed  to  pur-  deed  of   the  covenant    in   the  deed 

chase,  covenanting  not  to  sell   any  to   his    grantor.     Said   tiiird   person 

sand  off  from  the  parcel.     N.  there-  opened   a  pit  on  his   land  and  sold 

upon  sold  and  conveyed  his  deed  con-  sand  therefrom.     Held,  that  an  ao- 

laining  such  a  covenant  on  the  part  tion  was    maintainable    to    restrain 

of  tlie  grantee.     S.  subsequently  con-  such  sale.    Ilodge  v.  Sloan,  107  N.  Y. 

veyed  to  another  without  covenants  244. 
on  the  part  of  the  latter,  who,  how-       i  Hodge  v.  Sloan,  107  N.  Y.  244. 


460  CONVEYANCE. 

well  determined,  but  it  seems  clear  that  they  do  not  fall  within 
the  true  definition  of  a  condition,  which,  on  breach,  carries 
with  it  the  right  of  reverter.  They  have  been  held  to  constitute 
neither  a  condition  precedent  nor  subsequent,  nor  a  covenant 
that  the  grantee  would  abide  by  their  terms;  but  to  be  rather 
a  part  of  the  description  of  the  estate,  and  to  preclude  those 
claiming  under  the  grantee  from  making  erections  on  the  land 
in  violation  of  the  restrictions.^ 

The  general  tendenc}'  of  the  decided  cases  seems  to  lean 
toward  the  adoption  of  a  strict  rule  of  construction  of  all 
clauses  of  this  character,  and  many  instances  may  be  found  in. 
the  books  where  apparently  small  and  trivial  violations  of  im- 
posed restrictions  have  been  rigidly  corrected.^ 

Building  restrictions  are  usually  inserted  at  the  instance  of 
the  grantor,  and  in  effect  serve  to  impose  a  condition  in  the 
nature  of  a  servitude  or  easement  upon  the  land  that  is  sold 
for  the  benefit  of  the  land  which  the  grantor  still  retains;  but 
the  condition  may  be  and  sometimes  is  imposed  upon  the  land 
that  is  retained  and  in  favor  of  the  land  that  is  sold ;  and  where 
an  ow^ner  creates  a  servitude  of  this  character  on  his  own  lands, 
binding  by  express  words  his  heirs  and  assigns,  such  restric- 
tion is  in  the  nature  of  a  contract,  and  may  be  enforced  against 
any  assignee  with  notice.^ 

1  So  held  with  reference  to  a  clause  passage-way  shr.ll  be  kept  open  and 
in  a  deed  of  warranty  conveying  maintained  of  a  certain  width,  bay 
land  by  metes  and  bounds,  "condi-  windows  may  not  be  erected  over 
tioned  that  no  building  or  erection  is  the  passage-way.  Attorney-Gen.  v. 
ever  to  be  made  on  said  land  except  Williams,  140  Mass.  329.  So,  also, 
a  dwelling-house,  and  out-buildings  land  was  conveyed  with  the  restric- 
for  the  sanae;  .  .  .  also  that  no  tion  that  no  building  should  be  erected 
building  is  to  be  erected  on  said  land  "within  twenty  feet  of  C.  street." 
which  shall  extend  more  than  twenty  The  fi'out  wall  of  a  building  erected 
feet  southerly  of  the  main  body  of  was  twenty  feet  from  C.  street,  but 
the  dwelling-house  now  owned  and  a  part  of  the  roof  and  a  dormer  win- 
occupied  by  "  the  grantor.  But  this  dow  were  less  than  twenty  feet  fi'om 
decision  seems  to  have  been  reached  tlie  street.  Held,  a  violation  of  the 
largely  on  the  principle  that  the  ob-  restriction.  Bagnall  v.  Davies,  140 
struction  of  the  view  from  the  grant-  Mass.  76. 

or's  dwelling-house  was  a  proper  sub-  *  Thus,  a  covenant  with  the  grantee, 

ject  of  reservation,  and  sucli  effect  is  "  his  heirs  and  assigns  "  in  a  deed  of 

given  to  the  stipulation.     Fuller  v.  conveyance,   binding    the   grantors. 

Arms,  45  Yt.  400.  "  their  heirs  and  assigns,"  not  to  build 

2  Thus,  under  a  stipulation  that  a  any  improvement  inferior  to  certain 


CONDITIONS,   IMITATIONS    AND    KESTRICTIONS.  4G1 

§  22.  rrohibited  eiiiploymeiits.  Conditions  imposing  lim- 
ited restrictions  upon  llic  use  of  granted  property  or  tho 
method  of  its  cnjo3-nicnt,  however  much  they  may  afTcct  tho 
value  or  the  nature  of  the  estate,  are  generally  upheld  and  en- 
forced where  tliey  do  not  tend  to  limit  or  destroy  its  alienable 
or  inheritable  character.  This  is  particularly  true  with  refer- 
ence to  the  employment  of  the  premises  for  purposes  obnoxious 
to  the  senses  or  to  health.  In  this  way  slaughter-houses, 
soap  factories,  distilleries,  livery-stables,  tanneries  and  ma- 
chine-shops have  in  a  multitude  of  instances  been  excluded 
from  particular  localities,  which,  thus  freed  from  unpleasant 
sights,  noxious  vapors  or  disturbing  noises,  have  become  de- 
sirable as  places  for  residences  of  families.'  That  such  a  pur- 
pose is  a  legitimate  one,  and  may  be  carried  out  consistently 
with  the  rules  of  law  by  reasonable  and  proper  covenants,  con- 
ditions or  restrictions,  cannot  be  doubted.' 

Purchasers  .may  acquire  by  their  deeds  the  right  to  insist 
upon  the  observance  of  a  covenantor  stipulation  in  the  nature 
of  a  covenant  not  to  permit  the  erection  of  any  noxious,  un- 
wholesome, offensive  or  dangerous  establishment,  calling  or 
trade  where  such  covenants  in  the  deeds  for  different  lots  are 
nevertheless  made  for  tho  mutual  benefit  and  protection  of  all 
the  purcliasei's  of  lands  in  a  designated  block  or  neighborhood.'' 
So,  also,  while  a  previous  purchaser  from  the  original  owner  of 
the  block  or  neighborhood  could  not  sue  at  law  upon  the  cove- 
nant in  the  deed  to  a  subsequent  purchaser,  yet  equity  might 
protect  him  by  injunction  against  the  carrying  on  of  any  nox- 
ious business  or  trade  upon  the  lot  of  such  subsequent  pur- 
chaser.^ * 

The  usual  remedy  for  the  violation  of  covenants  of  this 
character  is  an   injunction  to  keep  within   the  terms  of  the 

specified  qualifications  on  any  of  cer-  Sperry  v.  Pound,  5  Ohio,  189;  Gray 

tain  lots  retained  by  the  grantors,  v.  Blanchard,  8  Pick,  (Mass.)  284. 

constitutes  an  incumbrance  on  such  -Clark  v.  Martin,  49  Pa.  St.  289; 

lots  which  is  binding  on  a  subsequent  Whitney  v.    Railway   Co.    11    Gray 

grantee  tliereof  with  notice.     Halle  (Mass.),  359. 

V.  Newbold,    14  Atl.  Rep.  (Md.)  6G2.  ^  Barrow  v.  Richard,   8  Paige  (X. 

1  Cowell  V.  Colorado  Spring  Co.  100  Y.),  351 ;  Columbia  College  v.  Lynch, 

U.  S.  55;  Plumb  v.  Tubbs,  41  N.  Y.  70  N.  Y.  452. 

442;  Collins  v.  Marcy,  25  Conn.  242;  ^  Barrow  v.   Richard,   8  Paige  (X. 

Y.),  351. 


4(i2  CONVEYANCE. 

agreement:  and  where  the  circumstances  show  no  reasonable 
ground  for  the  violation,  a  court  of  equity  will  compel  the  of- 
fending party  to  comply  with  the  obligation  which  was  at- 
tached to  the  property  by  the  terms  of  the  grant.  It  must 
frequently  happen,  however,  that  the  changed  circumstances 
of  the  property  and  its  surroundings  would  render  it  inequi- 
table to  deprive  a  purchaser  of  the  privilege  of  conforming  his 
property  to  the  character  of  the  neighborhood  so  as  to  use  it 
to  greater  advantage  and  in  no  respect  to  the  detriment  of 
his  grantor.  Restrictions  on  use  or  prohibitions  of  specified 
employments  are  generally  made  for  the  better  improvement 
of  lands  and  to  secure  permanent  values,  yet  the  character  of 
entire  neighborhoods  will  sometimes  change  in  such  a  manner 
that  the  very  object  of  the  restriction  can  only  be  attained  by 
its  violation.  If  for  any  reason,  therefore,  not  referable  to  the 
purchaser,  an  enforcement  of  the  covenant  would  defeat  the 
ends  originally  contemplated  by  the  parties,  a  court  of  equity 
may  well  refuse  to  interfere,  or  if  in  fact  the  condition  of  the 
property  by  which  the  premises  are  surrounded  has  been  so 
altered  that  the  conditions  and  restrictions  of  the  covenant  are 
no  longer  applicable  to  the  existing  state  of  things.  And  so, 
notwithstanding  the  contract  may  have  been  fair  and  just 
when  made,  if  subsequent  events  have  made  performance  by 
the  purchaser  so  onerous  that  its  enforcement  would  impose 
great  hardship  upon  him  with  little  or  no  benefit  to  the 
grantor,  equity  will  deny  its  relief  to  the  covenantee  in  the  en- 
forcement of  the  stipulation.^ 

§  23.  Enforcement  of  restrictions.  A  stipulation  by  way 
of  restriction,  not  amounting  to  a*condition,  if  not  in  restraint 
of  trade  or  otherwise  illegal,  may  be  and  usually  is  enforced 
by  injunction,^  and  this  remedy  may  be  had  not  only  against 
an  immediate  grantee  but  as  against  all  subsequent  purchasers 
with  notice;'  and  the  further  fact  that  a  penalty  or  forfeiture 
is  imposed  for  doing  a  prohibited  act  is  no  obstacle  to  the  in- 
terposition of  equity'  by  injunction.* 

'  Columbia  College  v.  Thacher,  87       3  Webb  v.   Robbins,    77  Ala.    176 ; 

N.  Y.  311;  and  see  Willaid  v.   Tay-  Payson  v.  Burnham,   141  Mass.   547; 

loe,  8  Wall.  (U.  S.)  557.  Gilbert  v.  Peteler,  38  N.  Y.  165. 

2  Tallmadge  v.  Bank,  26  N.  Y.  110 ;       *  Watrous  v.  Allen,  57  Mich.  362. 
Morris  v.    Tuskaloosa   Mfg.    Co.    83 
Ala.  505. 


CONDITIONS,  LIMITATIONS    AND    RESTRICTIONS.  463 

Nor  is  the  remedy  confined  to  the  grantor  and  liis  heirs,  but 
it  may  be  resorted  to  b}'  his  assigns  as  well.^ 

§  24.  Conveyances  for  support.  A  very  large  and  impor- 
tant class  of  conveyances,  conditional  in  form,  is  constituted  by 
deeds  given  in  consideration  of  the  future  support  of  the 
grantor.  The  draft  of  these  conveyances  usually  embodies 
clauses  which,  if  they  do  not  create  at  least  partake  of  the 
nature  of  conditions;  yet  the  tendency  of  the  courts  has  been 
to  divest  them  of  their  conditional  character,  particularly 
where  the  grant  is  absolute  and  the  agreement  for  support  is 
stated  to  be  the  consideration.-  In  such  cases  a  liberal  inter- 
pretation has  been  adopted,  in  accordance  with  established 
equity  rules;  and  unless  a  condition  is  clearly  manifest  the 
agreement  will  be  construed  a  covenant,  soundiuir  in  daraaijes 
only.^ 

Attempt  is  sometimes  made  to  give  to  conveyances  of  this 
character  the  operation  and  effect  of  mortgages,  upon  the 
theory  that  any  conditional  conveyance  given  for  the  perform- 
ance of  an  obligation  partakes  of  the  essential  character  of  a 
mortgage;  but  the  better  and  prevailing  opinion  would  seem 
to  be  that  the  rules  of  law  relating  to  mortgages  have  little  or 
no  application  to  them.  It  is  said  that  wherever  the  condi- 
tion, when  broken,  gives  rise  to  no  claim  for  damages  what- 
ever, or  to  a  claim  for  unliquidated  damages,  the  deed  is  not 
to  be  regarded  as  a  mortgage  in  equity,  but  as  a  conditional 
deed  at  common  law.  It  has  the  incidents  of  a  mortirasre 
only  to  a  limited  extent;  and  the  party,  if  relieved  by  a  court 
of  equity  from  forfeiture  resulting  from  the  non-performance 
of  the  condition,  will  not  be  relieved  as  in  case  of  a  morto-aofe. 
It  is  not,  however,  intended  to  say  that  the  same  principle  of 
justice  which  has  led  courts  of  equity  to  establish  the  system 

1  A  condition  that  the  fi-ont  Hne  of  ^g^e  Walters  v.  Bredin,  70  Pa.  St. 

the  building  to  be  erected  on    the  235;  Tracy  v.  Hutchins,  36  Vt.  225; 

granted  lot  shall  be  placed  ten  feet  Berryman    v.    Schumaker,    67    Tex. 

back   from   tiie    street   and   parallel  312;  Hubbard  v.  Hubbard,  97  Mass. 

thereto,  Jicld,  a  valid  restriction  ca-  188. 

pable  of  enforcement  by  a  grantee  ^  jyjartin  v.  Martin,  131  Mass.  547; 

of  another    lot    from    the  common  Bortz  v.  Bortz,  48  Pa.  St.  386 ;  Har- 

grantor.      Hamlen    v.    Werner,    144  ris  v.  Shaw,  13  III.  456;  Gallaher  v. 

Mass.  396.  Herbert,  117  111.  160. 


464  CONVEYANCE. 

of  relief  fi'oiii  forfeiture  in  the  case  of  mortgages  will  not  en- 
title a  party  to  analogous  relief  in  case  where  the  design  of 
the  parties  is  to  make  a  conveyance  by  way  of  security.  Yet 
even  where  a  bond  or  other  writing  is  executed  contempora- 
neously with  the  conveyance  the  grant  is  not  regarded  as  a 
mortgage,  but  effect  is  given  to  it  according  to  its  manifest 
intent,  which  is  a  conveyance  with  condition  subsequent. 

AVhere  the  agreement  is  construed  to  be  a  condition  subse- 
quent a  breach  of  the  same  carries  with  it  the  usual  consequences 
that  follow  other  conditions  subsequent,  and  entitles  the  grantor 
to  enter  and  reclaim  possession  after  demand  of  performance 
and  a  failure  to  comply.'  A  demand  is  usually  an  essential 
prerequisite,-  for  mere  neglect  to  perform  the  condition  does 
not  of  itself  determine  or  defeat  the  estate.  At  best  such  a 
course  only  exposes  it  to  be  defeated  and  determined  at  the 
election  of  the  grantor;  for  the  rule  is  general  that,  to  effect  a 
forfeiture,  there  must  be  a  demand  on  the  part  of  the  persons 
entitled  to  insist  upon  its  performance,  whether  the  condition 
consists  in  the  payment  of  money  or  the  performance  of  some 
other  act,  and  a  refusal  on  the  part  of  the  person  in  whom  the 
title  is  vested.-' 

The  language  used  in  such  deeds  will,  however,  be  deemed 
to  have  created  a  covenant  rather  than  a  condition  whenever 
such  construction  is  practicable,*  while  the  rule  is  general 
that  a  court  of  equity  will  never  lend  its  aid  to  divest  an  estate 
for  a  breach  of  a  condition  subsequent,  but  where  a  compensa- 
tion can  be  made  in  money  will  relieve  against  such  forfeit- 
ures and  compel  the  complaining  party  to  accept  a  reasonable 
compensation  in  money  Where,  therefore,  the  language  is 
reasonably  susceptible  of  the  construction  that  the  parties  in- 
tended to  secure  the  payment  of  stipulated  or  ascertainable 
sums  of  money  during  the  life-time  of  the  grantor,  no  condi- 
tion subsequent  will  be  deemed  to  have  been  created.  If  a 
stipulated  amount  and  the  manner  of  its  payment  formed  one 
of  the  clauses  of  the  deed,  the  grantor  would  be  entitled  to 
have  a  lien  declared  in  his  favor  for  the  payment  of  such. 

1  Lindsey  v.  Lindsey,  45  Ind.  552;       -' Kigiey  v.  McNiece,  71  Ind.  434. 
Bradbtreet  v.  Clark,  21  Pick.  (Mass.)       3  Cory  v.  Cory,  86  Ind.  567. 
389.  4Gallaher  v.  Herbert,  117  III.  160. 


CONDITIONS,   LIMITATIONS    AND    ULSTURTKjNS.  4G5 

amount  by  the  grantee  or  liis  assigns,  the  record  of  the  deed 
being  notice  to  all  persons  of  the  reservation  contained  therein 
in  favor  of  the  grantor.' 

A  substantial  compliance  with  the  terms  of  a  contract  of 
maintenance  is  all  that  is  usually  required  of  the  grantee,-  while 
the  beneficiary  may  waive  performance  by  the  grantee  by  re- 
fusing to  receive  the  support. ''  In  such  event  the  grantee  will 
be  released  from  further  performance.* 

§  25.  Conveyance  for  specific  use.  Aside  from  the  restrict- 
ive stipulations  often  inserted  in  deeds  of  absolute  conveyance, 
the  elfect  of  which  has  been  considered,  grants  are  often  made 
upon  an  express  limitation  or  a  specific  designation  of  the  use 
for  which  the  property  is  to  be  employed,  and  either  expressly 
or  b}'^  implication  prohibiting  its  use  for  other  purj)oses.  Such 
conveyances  are  clearly  in  the  nature  of  conditional  grants.  It 
would  seem,  however,  where  ])roperty  has  been  conveyed  for 
a  specific  purpose,  that  an  hahenduin^  "  to  have  and  to  hold," 
etc.,  "  for  the  use  aforesaid,''  cannot  be  construed  as  a  condition 
in  the  grant  or  a  limitation  of  the  estate ;  ^  nor  will  the  addition 
of  words  to  the  description  of  the  property  indicating  the 
character  of  the  use  to  which  the  property  is  to  be  put  of 
themselves  create  a  condition  subsequent.* 

Where  a  conveyance  of  land  to  a  religious  or  eleemosynary 
corporation  is  absolute,  without  condition  or  reservation,  it 
creates  no  trust  beyond  that  general  duty  which  the  law  puts 
upon  a  corporation  of  using  its  property  for  the  purposes  con- 
templated in  its  creation.  That  sort  of  trust  is  not  one  which 
fastens  upon  the  land  and  inheres  in  the  title,  going  with  it 
where  it  passes,  or  restraining  alienation,  but  founded  solely 
upon  the  corporate  character  of  the  grantee.  The  title  being 
absolute,  the  corporation  may  transmit  it  to  its  own  vendee. 
When  this  occurs  the  proceeds  take  the  place  of  the  land  and 

iGallaher  v.  Herbert,  117  111.  160;  15  Oreg.  172;  Farnham  v.  Thompson, 

and  see  Berrj-man  v.  Schumaker,  G7  34  Minn.  330. 

Tex.  312.  "^As   where,    in  a    conveyance    of 

^  Bresnahan  v.  Brcsnahan,  40  Wia.  land  to  a  religious  corporation,  the 

385 ;  Joslyn  v.  Parlin,  54  Vt.  670.  words  "  for  the  purpose  of  erecting  a 

» Boone  V.  Tipton,  15  Ind.  270.  church  thereon  only  "  followed  the 

*  Clark  V.  Barton,  51  Ind.  165.  description  of  the   property.     Farn- 

5 Ward   V.  Screw  Co.   1   Cliff.   (C.  harnv.  Tlwnipson,  3i  Minn.  830. 

Ct.)  565;   Ruley  v.  Umatilla  County, 
30 


4GG  CONVEYANCE. 

become  the  corporate  property,  whicb,  if  necessary,  a  court 
may  devote  to  the  proper  uses  and  purposes  wliich  the  corpo- 
ration was  framed  to  subserve,  and  to  accomplish  which  the 
property  was  bestowed.  It  is  in  no  respect  diverted  from  the 
corporation,  or  even  from  denominational  or  other  prescribed 
uses;  and,  so  far  as  there  is  an  element  of  trust,  a  sale  is  con- 
sistent with  and  not  destructive  of  it.' 

§  26.  Ilesiime.  It  would  seem,  therefore,  from  a  review  of 
the  foregoing  paragraphs  that  there  are  three  well-defined 
species  of  conditions  now  employed  in  conveyances  in  this 
country,  all  having  for  an  object  the  same  general  purpose, 
but  in  each  instance  with  a  different  operation  and  effect,  viz.: 
(1)  Conditions  technically  so  called,  operating  as  a  defeasance 
upon  breach;  (2)  covenants  proper,  operating  as  promises 
merely,  and  giving  a  right  of  action  for  damages  in  case  of 
breach;  and  (3)  conditional  covenants  or  stipulations,  operat- 
ing by  way  of  restriction  and  enforceable  according  to  their 
terms  on  breach  or  violation.  In  the  creation  of  each  of  these 
special  classes  the  same  operative  words  may  be  emplo^'ed, 
but  their  value  and  effect  is  to  be  determined  rather  from  the 
spirit  than  the  letter  of  the  text.  They  must  be  interpreted 
in  the  light  of  the  other  provisions  of  the  deed,  while  the  at- 
tendant circumstances,  the  situation  of  the  parties  and  the 
state  of  the  property  conveyed  are  competent  to  aid  in  esti- 
mating their  effect.- 

The  subject  of  conditional  covenants  and  stipulations,  al- 
though as  old  as  our  law,  would  still  seem  to  be  a  vexed  ques- 
tion in  this  country.  The  works  of  the  leading  elementary 
"writers  shed  but  a  faint  and  uncertain  light  upon  it,  and  in 
some  instances  the  subject  is  expressly  avoided  or  passed  with 
briefest  mention.^  The  utterances  of  the  courts  are  in  the 
main  characterized  by  a  cautious  timidity,  and,  except  in 
reference  to  the  broad  and  commonly-accepted  principles,  are 
discordant  and  contradictory.     Few  if  any  positive  rules  can 

1  Matter      of      First    Presbyterian  learnedly  and  logically  discussed  in 

Church,  106  N.  Y.  251.  Bingham    on    Real    Property,    but 

-  U.   S.  Mfg.  Co.  V.   Grass,  93  111.  mainly  with  reference  to  the  validity 

483;  Batavia    Mfg.    Co.    v.    Newton  of    conditions    in    absolute   convey- 

Wagon  Co.  91  111.  230.  ances.     See  Bing.  Real  Prop.  270  et 

^See  2  Wash.  Real  Prop.  4;  1  Hill,  seq. 
Real    Prop.     526.     They    are     very 


CONDITIONS,   LIMITATIONS    AND    KKSTRICTIONS.  467 

be  laid  clown  as  a  result  of  their  perusal;  but  it  is  believed 
that  the  following  deductions  and  inferences  are  supported  by 
the  volume  of  authority: 

First.  Where  the  recital  is  in  form  a  condition  — as  where 
the  grant  is  expressly  made  upon  condition,  and  no  words 
other  than  the  granting  clause  control  or  modify  the  ai)i)arent 
effect  of  the  recital  oi-  tend  to  negative  the  idea  tlierein  cx- 
l^ressed  — such  ix'cital  sh(ndd  be  construed  as  a  condition;  and 
the  estate,  under  a  deed  conveying  the  same,  will  remain  defea- 
sible until  the  condition  be  performed,  destroyed  or  barred  by 
the  statute  of  limitations  or  by  estoppel,'  except  (1)  when  the 
condition  imposed  is  impossible;-  (2)  requires  the  performance 
of  what  is  contrary  to  law  or  good  morals,^  or  (3)  is  rcjjugnant 
to  the  estate  granted.* 

Second.  AVhere  the  recital,  whatever  may  bo  the  technical 
language  employed,  has  added  a  conclusion  with  a  clause  of 
re-entry;  or,  without  such  clause,  if  there  be  a  declaration  of 
defeasance  or  forfeiture,  in  case  of  the  performance  or  non- 
performance of  some  particular  act,  the  recital  should  be  con- 
strued a  condition,  for  the  breach  of  which  the  grantor  or  his 
heirs  may  enter  and  repossess  the  land  to  tiie  exclusion  of  the 
grantee,  his  heirs  or  assigns.* 

Third.  Where  the  recital,  although  unaccompanied  with 
any  proviso,  the  word  "condition"  not  being  mentioned,  yet 
clearly  shows  that  the  performance  or  non-performance  of  the 
act  named  is  the  onl}'  consideration  or  inducement  for  the  deed, 
>t  should  ordinarily  be  construed  a  condition.^  These  three 
deductions  may  easily  be  made  from  the  precedents,  but  in  the 
opinion  of  the  writer  are  opposed  to  principle  and  in  conflict 

>  Sperry  v.  Pond,  5  Ohio,  389 ;  R.  R.  203 :  De  Peyster  v.  Michael,  2  Seld. 

Co.  V.  Neighbors,  51  Miss.  412;  Chap-  (N.  Y.)  4G7. 

man  V.  Pingree,  67  Me.  198;  Ruchv.       -"'Collis  v.    Marcy,   24    Conn.    242; 

Rock  Island,  97  U.  S.  G93;  Cowell  v.  Emerson  v.  Simson,  43  N.  H.    473; 

Col.  Springs  Co.  100  U.  S.  55;  Ham-  Thomas  v.  Ricord,  47  Me.  500;  Jack- 

inond  V.  R'y  Co.  15  S.  C.  10.  son  v.  Topping,  1  AVond.  (N.  Y.)  388; 

2  Jones  V.  R.  R.  Co.  14  W.  Va.  514;  Van  Rensselaer  v.  Hays,  19  N.  Y.  95; 
Hughes  V.  Edwards,  9  "Wheat.  (U.  S.)  Plumb  v.  Tubbs,  41  N.  Y.  442;  Adams 
489.  V.  Lindell,  5  Mo.  App.  197;  Cowell  v. 

3  Taylor  v.  Sutton,  15  Ga.  103 ;  Bank  Col.  Springs  Co.  8  Colo.  82. 

V,  Davis,  21  Pick.  (Mass.)  42.  «  Railroad  Co.  v.  Hood,  60  Ind.  580; 

<  Gadberry  v.  Sheppard,  27  Miss.    Austin  v.   Cambridgeport,  21   Pick. 

215. 


468  CONVEYANCE. 

with  theory,  as  are  also  the  precedents  on  which  they  are  based. 
Indeed,  it  is  diilicult  to  understand  how  any  instrument  of  con- 
veyance which  carries  the  lull  title  and  all  the  estate,  leaving 
no  reversion  or  possibility  of  reverter  in  the  grantor,  or  which 
upon  its  face  distinctly  negatives  all  idea  of  landlord  and  ten- 
ant, or  of  ultimate  title  in  others,  can  by  any  conditions  in- 
serted be  operative  to  defeat  the  grant,  for  a  right  of  re-entry 
always  supposes  an  estate  in  the  grantor.' 

Fourth.  Analogous  to  the  last  deduction  is  that  of  a  grant 
upon  the  "express  condition"  that  the  property  shall  be  used 
only  for  a  certain  and  specified  purpose,  with  a  clause  of  re- 
verter upon  breach.  In  such  cases,  and  particularly  when  the 
condition  partakes  of  the  consideration,  the  recital  must  be 
construed  a  condition.  But  this  class  of  cases  is  essentially 
different  from  those  previous!}''  considered  in  that  the  condition 
annexed  is  a  part  of  or  defines  the  estate  granted,  and  the 
breach  does  not  in  fact  work  a  forfeiture,  but  limits  the  estate, 
which  ceases  and  determines  without  any  entr}'  or  other  act  on 
the  part  of  the  reversioner,  the  condition  being  a  conditional 
limitation.^ 

Fifth.  Where  a  recital,  although  importing  a  condition,  does 
not  expressly  and  in  terms  declare  the  same,  and  provides  only^ 
for  the  performance  of  some  act,  or  imposes  some  burden  or  duty 
upon  the  grantee,  but  does  not  stipulate  for  a  re-entry  or  de- 
clare a  forfeiture,  the  acceptance  of  the  deed  is  in  effect  an 
agreement  to  perform  the  act  or  assume  the  burden,  and  the 
recital  should  be  construed  a  covenant.*  This  deduction,  while 
supported  by  precedent  and  in  consonance  with  reason,  is  yet 
subject  to  more  doubt  than  any  which  have  preceded.  The 
courts  usuall}'  seem  to  incline  to  this  view  under  a  choice  of 
difficulties,  and  more  because  "  forfeitures  are  odious  "  than  for 
the  application  of  any  positive  principle.  In  discussing  the 
subject  there  is  a  manifest  restraint  in  most  cases,  and  in  many 
instances  the  subject  is  disposed  of  summarily  by  the  familiar 

1  Scott  V.  Lunt,  7  Pet.  606;  Blight  2  Hunt  v.  Beeson,  18  Ind.  380; 
V.  Rochester,  7  Wheat.  547 ;  and  see  Hooker  v.  Turnpike  Co.  12  Wend.  (N. 
Osterhout  v.  Shoemaker,  3  Hill  (N.    Y.)  371. 

Y.),  518;  |De  Peyster  v.  Michael,  6  ^Conger  v.  R.  Co.  15111.  306;  Thorn- 
N.  Y.  467;  Van  Rensselaer  v.  Reed,  26  ton  v.  Trammel,  39  Ga.  202;  Randall 
N.  Y.  558.  V.  Latham,  36  Conn.  48;  Laberee  v. 

Carleton,  53  Me.  213. 


CONDITIONS,  LIMITATIONS    AND    KESTRICTI0N8.  4C9 

doctrine  that  where  doubt  or  ambiguity  exists  recitals  should 
be  construed  as  covenants  rather  than  conditions.  The  author- 
ities are  inharmonious  and  often  contradictory,  but  tlie  ma- 
jority su[)port  the  i)ro])osition. 

Sf\ii/i.  Where  tlie  recital,  ahliough  importing  a  condition, 
provides  for  its  breach  a  penalty  or  compensation  other  than 
forfeiture,  the  recital  sliould  be  construed  a  covenant.' 

Sevejifh.  Where  the  recital,  although  importing  a  condition, 
has  added  no  clause  of  re-entry  or  declaration  of  defeasance, 
but  clearly  indicates  a  charge  upon  the  estate,  the  acceptance 
of  the  deed  creates  a  duty  the  due  observance  of  which  is  ob- 
ligator^"^  on  the  grantee  and  those  claiming  under  him.  The 
recital  in  such  case  does  not  create  a  condition  and  takes  effect 
only  by  way  of  restriction.  Though  full  effect  is  to  be  given 
to  it  according  to  its  terms  its  operation  cannot  be  extended 
by  implication,  and  it  should  be  construed  only  as  part  of  the 
description  of  the  estate  granted.^  This  proposition  is  not  only 
supported  by  ample  authority,  but  is  in  full  harraon\'^  with  our 
theory  of  titles  and  estates.  In  its  general  features  it  resem- 
bles the  fifth  deduction  above  made,  and  sometimes  partakes 
of  its  nature  in  so  far  that  the  restrictions  may  also  take  effect 
as  a  covenant.  But  no  forfeiture  follows  a  breach  as  a  conse- 
quence, nor  will  any  action  ordinarily  result  for  damages. 
The  fundamental  idea  of  conditions  annexed  to  estates  is  to 
restrain  the  commission  of  an  acton  the  one  hand  or  compel 
its  performance  on  the  other;  forfeiture  affects  neither  of  these 
ends,  but  simply  provides  a  penalty,  which,  in  a  majority  of 
instances,  is  not  in  furtherance  of  the  true  intent  as  expressed 
in  the  instrument,  and,  except  in  case  of  conditional  limita- 
tions, is  repugnant  to  the  grant. 

EujldJi.  The  test  for  determining  between  a  condition  and 
a  covenant  is  in  the  application  of  the  language  employed.  A 
condition  can  onl}'  be  made  by  the  grantor;  the  language 
must  be  his.     A  covenant  may  be  made  by  the  grantee,  and 

'  Board  of  Ell.  etc.  V.  Trustees,  etc.  Skinner  v.  Shepard,  130  Mass.  180; 

O;]  111.  204;  Ilartung  v.  Witte,  18  N.  Trustees  v.  Cowen,  4  Paige,  Ch.  (N. 

W.  Rep.  175.  Y.)510;  Dorr  v.  llarrahan,  101  Mass. 

-Warren  v.  Meyer,  22  Iowa,  351;  31;  Seymour  v.  McDonald,  4  Sandf. 

Packard  v.   Ames,  16  Gray  (Mass.),  Ch.  (N.  Y.)  502. 
325;    Fuller    v.    Arms,   45    Vt.   4C0; 


470  CONVEYANCE. 

when  the  language  used  amounts  to  an  agreement  on  the  part 
of  the  grantee  a  covenant  is  raised.  A  covenant  is  a  contract; 
a  condition,  something  affixed  by  way  of  penalty  for  the  non- 
fulfillment of  the  terms  imposed.  In  the  former  case  the 
grantee  agrees  to  do  or  refrain  from  doing  some  specific  thing; 
in  the  latter  he  makes  no  agreement,  but  takes  subject  to  the 
terms  of  the  condition.  If  the  clause  be  doubtful  it  will  al- 
ways be  construed  a  covenant.  If  clearly  expressed,  effect 
must  be  given  to  it  according  to  its  terms.  When  forfeiture 
is  not  distinctly  expressed  or  necessarily  implied,  and  no  spe- 
cial agreement  is  stated  or  imported,  the  clause  creates  a 
charge  upon  or  incident  of  the  estate;  but  the  question  in  most 
cases  will  depend  upon  the  apparent  intention  of  the  parties 
rather  than  any  fixed  rules  of  construction,  and,  until  clearer 
ideas  of  title,  tenure  and  estate  are  made  to  prevail,  uncer- 
tainty and  doubt  will  attend  the  creation  or  attempted  crea- 
tion of  reversionary  rights  and  forfeitures,  or  the  annexation 
of  conditions  to  vested  estates. 


EESEUVATIONS    AND    EXCEPTIONS. 


471 


CHAPTER  XVIIT. 


RESERVATIONS  AND  EXCEPTIONS. 


1. 

Definatory. 

s  >• 

2 

Creation  of  reservation. 

3. 

Construction. 

8. 

4. 

Certainty  an  essential. 

9. 

5. 

Must  be  to  grantor. 

10. 

6. 

Rights  of  way. 

11. 
12. 

Right  of  flowagc  —  Water  priv- 
ileges. 
Light  and  air. 
Use  and  occupancy. 
Reserved  riglits  in  the  soil. 
Standing  timber. 
Reserved  rights  lost  by  disuse. 

§  1.  Definatory.  A  reservation  is  technically  defined  as 
the  creation  of  a  right  or  interest  which  had  no  prior  exist- 
ence as  such  a  thing  or  as  part  of  a  thing  granted ; '  an  excep- 
tion, on  the  other  hand,  being  the  exclusion  of  something  from 
the  effect  or  operation  of  the  deed,  and  is  always  a  part  of  the 
thing  granted.-  Both  a  reservation  and  an  exception  must  be 
a  part  of  or  arise  out  of  that  which  is  granted  in  the  deed;  but 
the  difference  is  that  an  exception  is  something  taken  back  or 
out  of  the  estate  then  existing  and  clearly  granted,  while  a 
reservation  is  something  newly  created  and  issuing  out  of 
what  is  granted.*  Thus,  a  right  of  way  may  be  excepted  from 
a  grant,  or  it  may  be  reserved  at  the  time  of  and  in  the  con- 
veyance; but  in  the  latter  case  it  is  the  creation  of  a  new 

'A  reservation  may  extend  to  al-  and  set  forth.     Woodfall,  Landl.  & 

most  any  right  or  interest  in  lands  Ten.  10;  Shep.  Touch.  80;  Coke  Litt. 

previously  owned  by  the  grantor.  47  b. 

"To  make  a  valid  exception   the  3  Adams  v.  Morse,  51  Me.  497;  Kis- 

following    matters     must     concur:  ter  v.  Reeser,  13  Rep.  377;  Hurd  v. 

(1)  The  exception  must  be  created  by  Curtis,  7  Met.  (Mass.)  94.     An  excep- 

apt  words;  (2)  must  be  a  part  of  the  tion   frequently  proceeds   upon    the 

thing  previously  described ;  (3)  must  theory  that  it  is  a  regrant  by  tiie 

be  a  part  of  the  thing  only,  and  not  grantee  to  the  grantor  of  the  estate 

of  all;  (4)  must  be  of  such  a  thing  as  described  in  the  exception.     Roberts 

ia  severable  from  the  demised  prem-  v.  Robertson,  53  Vt.   690;  Adams  v. 

ises,  and  not  of  an  inseparable  inci-  Morse,  51  Me.  497;  and  see  Marshall 

dent;  (5)  must  be  of  such  a  thing  as  v.  Trumbull,  28  Conn.  183;  Munn  v. 

ho  that  excepts  may  have;  (6)  must  Worrall,  53  N.  Y.  44;    McDaniel  v. 

be  of  a  particular  thing  out  of  a  gen-  Johns,  45   Miss,  632;    Klaer  v.  Ridg- 

eral,  and  not  of  a  particular  thing  way,  86  Pa.  St.  529;  Leavitt  v.  Towle, 

out    of    a    particular    tiling;    and  8   N,   H.   90;    Rich   v.   Zeilsdorff,  22 

(7)    must   be    particularly  described  "Wis.  544. 


472  CONVEYANCE. 

right  or  interest.  Both  an  excc])tion  and  a  reservation  must 
be  created  by  apt  words,  those  employed  for  the  former  being 
"saving  and  excepting,"  while  for  the  latter  the  word  "reserv- 
ing" is  sufficient;  but  the  terms  are  often  used  indiscriminately, 
and  frequently  in  conjunction,  as  "  excepting  and  reserving," 
etc. ;  and  the  difference  between  the  two  is  so  obscure  in  many 
cases  that  it  has  not  been  observed.'  Notwithstanding  there 
is  a  technical  distinction  between  the  terms,  yet  where  "re- 
serving" is  used  with  evident  intent  to  create  an  exception, 
eifect  will  be  given  to  it  in  that  sense ;'^  and  generall}',  where 
the  rule  prevails  that  the  expressed  intention  of  the  parties  is 
the  controlling  consideration  in  construing  a  deed,  the  distinc- 
tion of  the  common  law  between  exceptions  and  reservations 
is  not  material.'' 

The  two  incidents  are  so  nearl}'^  allied  and  partake  so  largely 
of  the  same  characteristics  that  they  are  best  treated  in  con- 
nection with  each  other,  and  will  be  so  treated  in  the  succeed- 
ing paragraphs. 

§  2.  Creation  of  reservation.  Any  language  clearly  indi- 
cating intention  will  usually  be  given  effect  as  a  reservation, 
although  many  of  the  cases  hold  tliat  if  a  reservation  of  in- 
heritance is  intended  specific  words  of  inheritance  must  be 
employed,  and  that  a  reservation  to  the  grantor  alone  will 
have  no  greater  effect  than  to  enforce  upon  him  a  life  estate.* 
But  words  of  inheritance,  so  far  as  they  may  affect  the  char- 
acter of  estates  conveyed,  are  no  longer  necessary  in  most  of 
the  states,  and  it  seems  that  where  the  use  of  such  words  have 
been  dispensed  with  by  statute  in  the  creation  of  estates  the}'' 
need  not  be  used  in  a  reservation;^  and  in  like  manner,  if  the 
reservation  is  such  a  one  as  is  appurtenani  to  the  land  con- 
veyed or  to  land  yet  owned  by  the  grantor,  words  of  inherit- 
ance need  not  be  used.^ 

iWinthrop  v.    Fairbanks,  4t    Me.  ham,  56  Ala.  566;  Hart  v.  Stratton 

307 ;  Bowen  V.  Conner,  6  Cush.  (Mass.)  Mills,  54  N.  H.  109;  Dennis  v.  Wil- 

132;  Roberts  V.  Robertson,  53  Vt.  690.  son,    107    Mass.    591;    Whitaker    v. 

-Sloan  V.   Lawrence  Furnace  Co.  Brown,  46  Pa.  St.  197. 

29  Ohio  St.  568;  Kister  v.  Reeser,  98  4Ashcraft  v.  R.  R.  1^:6  Mass.  196. 

Pa.  St.  1 ;  and  see  Barnes  v.  Burt,  38  5  KarmuUt  r  v.  Krotz,  18  Iowa,  358. 

Conn.  541 ;  State  v.  Wilson,  42  Me.  9.  <>  Winthrop  v.    Fairbanks,   41   Me. 

3  Coal  Creek  Mining  Co.  v.  Heck,  309;  Burr  v.  Mills,  21  Wend.  (N.  Y.) 

15  Lea  (Tenn.),  497;  Heflin  v.  Bing-  290. 


KESEIiVATIONS    AND    EXCEPTIONS.  473 

§  3.  ("oiistruction.  Wlicro  the  exceptions  and  reservations 
of  a  deed  are  expi-esscd  in  a  doubtful  manner,  the  general 
rule  is  t!iat  they  shall  be  construed  most  strictly  against  the 
grantor;'  yet  if  the  intention  of  the  parties  can  be  fairly  ascer- 
tained from  the  instrument,  such  intention  will  govern  in  its 
construction.'-'  If  repugnant  to  the  grant  they  are  void;''  but 
generally  the  intent  of  the  ])arties.  as  ascertained  by  a  fair 
interpretation,  must  be  given  eifect,  and  the  excejjtion  recon- 
ciled if  reconcilement  is  possible.^  The  usual  rules  which 
govern  the  construction  of  grants  apply  in  the  same  manner 
to  excej)tions  and  reservations.'^ 

§  4.  Certainty  an  essential.  It  is  a  general  rule,  founded 
on  reason  and  sustained  by  authority,  that  the  same  certainty 
of  description  is  required  in  an  exception  out  of  a  grant  or  a 
reservation  made  therefrom  as  in  the  grant  itself.  The  rule 
is  not  uniform,  however,  and  in  some  states  seems  to  be  de- 
nied. In  the  cases  which  sustain  the  rule  the  doctrine  is 
announced  in  strong  and  generally  unqualified  terms,  which 
admit  of  no  exceptions,  that  where  a  deed  excepts  out  of  the 
conveyance  a  specific  quantity  of  land,  say  an  acre,  and  there 
is  nothing  in  the  exception  or  evidence  to  locate  it  upon  an}^ 
particular  part  of  the  tract,  the  exception  is  void  for  uncer- 
tainty, and  the  grantee  takes  the  entire  tract,^  But  it  seems 
that  in  some  cases  of  this  character  the  uncertainty  of  location 
may  be  cured  b}^  the  grantor's  election,  followed  by  acts  in 
pais.' 

On  the  other  hand,  there  are  cases  which  hold  that  where  a 
whole  tract  of  land  is  conveyed  by  specific  designation,  ex- 
cepting or  reserving  therefrom  an  acre,  without  describing  such 

1  Duryea  v.  New  Yoi'k,  63  N.  Y.  all  the  buildings  standing  thereon, 

592 ;  Wiley  v.  Sidorus,  41  Iowa,  224;  except  the  brick  factory,  the  land  on 

Klaer  v.    Ridgway,  80  Pa.    St.  529;  which    tlie    factory  stood    and   the 

Gerrish  v.  Shattuck,  132  Mass.  235.  water  privilege  appurtenant  tliereto 

-Wiley  V.   Sidorus,   41   Iowa,   224;  did  not  pass  by  tlie  deed.     Allen  v. 

JIall  V.  Ionia,  38  Mich.  493.  Scott,  21  Pick.  (Mass.)  25. 

*  As  where  the  exception  is  as  largo  ''Mooney  v.  Cooledge,  30  Ark.  040. 
as  the  grant  itself,  or  where  the  ex-  '  As  where  a  deed  reserved  three- 
cepted  part  was  specifically  granted —  quarters  of  an  acre  as  a  burying- 
as  where  a  person  grants  two  acres  ground  for  the  g  antor's  family,  and 
and  then  excepts  one  of  them.  was  followed  by  interments  in  a  par- 

*  Hail  V.  Ionia,  38  Mich.  493.  ticular  place.     Beuu  v.   Ilatcher,  81 

*  Where  land  was  conveyed  with  Va.  25. 


474  CONVEYANCE. 

acre,  the  exception  or  reservation  will  nevertheless  be  good, 
and  the  owner  thereof  will  become  a  tenant  in  connnon  with 
the  owner  of  the  balance  of  the  tract  in  the  proportion  that 
the  acre  bears  to  the  number  of  acres  in  the  whole.* 

§  5.  Must  be  to  grantor.  It  is  a  rule  that  a  reservation 
must  be  to  the  grantor  and  not  to  a  stranger,^  but  it  is  not  the 
less  made  to  him  simply  because  others  can  derive  advantage 
from  it;  and  it  Avill  be  considered  as  made  to  him  Avhen  valu- 
able rights  are  secured  to  him,  although  it  may  be  perceived 
that  others  will  also  bo  benefited  by  it.' 

But  while  a  reservation  will  not  give  title  to  a  stranger,  it 
may  operate,  when  so  intended  by  the  parties,  as  an  exception 
from  the  thing  granted,  and  as  notice  to  the  grantee  of  ad- 
verse claims  as  to  the  thing  excepted  or  "  reserved."  ^  It  must 
not  be  understood,  however,  that  the  exception  in  such  case 
gives  title  to  such  third  person,  for  no  one  not  a  party  to  the 

'  Gill   V.  Grand  Tower,  etc,  Co.  93    "from  the  public  highway  along  the 

111.  249.     In  this  case  the  language  of side  of  sub-lot  No. to  the 

the  deed   was,  "All  that  parcel  of  river,  not  less  than feet  wide." 

land  described  as  .  .  .  fraction  Held,  that  this  reservation  of  the 
section  23,  and  northwest  quarter  right  of  way  was  not  void  for  un- 
section  24,  town  10  south,  range  4  certainty.  The  parties  interested 
west,  except  twenty  acres,  which  is  could  locate  it  by  agreement,  or  by 
reserved  to  satisfy  the  claims"  of  acts,  conduct  and  declarations  indi- 
certain  heirs  therein  named.  And  eating  a  practical  location,  accom- 
see  Rockafeller  v.  Arlington,  91  111.  panied  by  user  from  and  after  the 
375.  An  exception  in  a  grant  of  date  of  the  creation  of  tiie  right  of 
lands  in  these  words,  "  excepting  and  way.  Crocker  v.  Crocker,  5  Hun 
reserving  out  of  the  said  piece  of  land   (N.  Y.),  587. 

BO  much  as  is  necessary  for  the  use  ^  Hornbeck  v.  "Westbrook,  9  Johns, 
of  a  grist-mill  on  the  east  side  of  the  (N.  Y.)  73;  Littlefield  v.  Mott,  14  R. 
road  at  the  west  end  of  the  saw-mill   I.  288. 

dam,"  is  a  good  exception ;  but  until  3  gay  v.  Walker,  3G  Me.  54 ;  Bridger 
the  grantor  or  his  assigns  exercise  the  v.  Pierson,  45  N.  Y.  6P1;  Karmuller 
right  reserved  and  build  the  mill,  it  v.  Krotz,  18  Iowa,  858;  Barber  v. 
is  inoperative,  and  the  whole  prem-  Barber,  33  Conn.  335. 
ises  vest  in  the  grantee,  who  may  *  West  Point  Iron  Co.  v.  Reymert, 
maintain  trespass  against  a  stranger,  45  N.  Y.  703.  As  wliere  a  deed  from 
or  even  against  the  grantor  or  his  as-  A.  to  B.  contained  a  clause  recogniz- 
signs,  for  an  entry  on  the  laud  for  ing  the  right  of  C.  to  a  mine  b}'  "re- 
any  purpose  other  than  that  speci-  serving  to  C.  the  right  he  has  to  the 
fied  in  the  reservation.  Dygert  v.  ore-bed  and  the  right  of  way  to  the 
Matthews,  11  Wend.  (N.  Y.)  35.  In  a  West  Point  foundry,  as  now  used." 
conveyance  of  land  a  right  of  way  Ibid, 
was  reserved  for  a  portion  thereof 


EESERVATIONS    AND    EXCEPTIONS.  475 

deed  can  acquire  any  rights  or  interest  in  the  land  by  virtue 
of  any  cxcei)tion  therein  contained  more  than  a  reservation; 
yet  where  third  i);irties  ali'cady  possess  rights  adverse  to  those 
conveyed,  an  exception  may  properly  bo  made  for  the  purpose 
of  relieving  the  grantor  from  liability  on  his  covenants.  The 
exception,  in  such  event,  operates  as  a  recognition  of  the  ex- 
isting rights  of  third  persons,  and  serves  to  convey  notice  to  the 
grantee.' 

§  G.  Uigliti  of  way.  One  of  the  mostcommon  reservations 
made  in  deeds  is  that  of  roadways,  paths  and  other  easements  of 
a  like  character  covered  by  the  generic  term  "  rights  of  way.'' 
Usually  reservations  of  this  kind  are  construed  to  create  only 
an  easement — the  fee,  with  all  its  incidents,  vestinir  in  the 
grantee.^  The  only  effect  of  such  a  reservation,  therefore,  is 
to  protect  the  grantor  from  liability  on  the  covenants  of  his 
deed.  But  where  the  clause  takes  the  form  of  an  exception 
from  the  grant,  so  that  no  title  in  fact  as  well  as  in  law  ever 
passed  to  the  grantee,  the  fee  as  well  as  the  use  is  included.' 

I  As  where  a  deed  with  covenants  farm,"  it  was  held  that  the  intention 
for  quiet  enjoyment  contained  the  of  the  grantor  was  to  convey  to  the 
following  clause :"  Reserving  always  grantee  the  lands  over  which  the 
a  right  of  way,  as  now  used,  on  the  public  highway  was  laid  out,  subject 
west  side  of  the  above-described  only  to  the  right  of  way  of  the  pub- 
premises  for  cattle  and  carriages,  lie  over  the  same.  Richardson  v,  Pal- 
from  the  public  highway  to  the  piece  mer,  38  N.  H.  212.  So,  a  reservation 
of  land  now  owned  by  R."  Held  of ''a  road  ten  feet  wide  along  the 
that,  although  strictly  a  reservation  line  of  Joseph  Badger"  was  held  to 
in  a  deed  is  ineffectual  to  create  a  carry  only  a  right  of  way  and  not  the 
right  in  any  person  not  a  party  fee  of  the  strip.  Kister  v.  Reeser, 
thereto,  yet  there  being  in  fact  a  98  Pa.  St.  1 ;  and  see  Winthrop  v. 
right  of  way  existing  at  the  time  of  Fairbanks,  41  Me.  oil;  Dunn  v.  San- 
the  grunt  in  R.,  such  clause  must  be  ford,  51  Conn.  443;  Bridger  v.  Pier- 
construed  as  an  exception  from  the  son,  45  N.  Y.  001,  A  reservation  of 
property  conveyed;  and  that  tiie  "all  roads  now  established  and  built 
grantor  was  not  liable  to  the  grantee  on  or  over  "  premises  conveyed  by 
as  for  a  breach  of  his  covenant,  land  relates  only  to  the  easement  of 
Bridger  v.  Pierson,  45  N.  Y.  001 ;  and  public  travel,  and  docs  notexceptany 
see  Richardson  v.  Palmer,  38  N.  H.  portion  of  the  soil  from  the  operation 
212.  of  the  deed.     Capron  v.  Kingman,  14 

2Caradine    v.  Caradine,    33    Miss.  Atl.  Rep.  808. 
C98;   Keeler  v.   Wood,   30    Vt.  242.  'An  exception   in  a    deed  in    the 
As  where  a  deed  conveyed  certain  following  words:    "Saving  and  ex- 
property,  "  reserving  to  the   public  copting  from   the    premises    liereby 
the  use  of  the    road    through  said  conveyed  all  and  so  much,  and  such 


47G  CONVEYANCE. 

Usuall}',  however,  courts  will  incline  to  construe  exceptions 
as  having  reference  only  to  the  easement  and  not  to  the  land; 
and  where  the  exception  is  of  a  "road"  or  of  a  "highway," 
and  not  of  the  land  covered  by  such  road  or  highway,  they 
may  be  taken  as  an  exception  of  the  right  of  passage  merely, 
and  the  soil  may  be  regarded  as  passing  to  the  grantee  in  the 
deed.^  But  as  a  person  through  whose  lands  a  highway  is  laid 
out  may  convey  the  land  on  each  side,  retaining  the  fee  of  the 
land  covered  by  the  roadway,'- this  result  will  follow  where 
proper  and  apt  words  to  except  such  land  from  the  premises 
conveyed  by  the  general  description  are  inserted  in  the  deed. 
Hence,  if  the  exception  does  not  purport  to  be  of  any  partic- 
ular estate  or  interest  in  the  land,  but  is  in  terms  of  a  cer- 
tain part  and  parcel  of  the  premises  embraced  within  the 
boundaries  set  forth  in  the  deed,  effect  must  be  given  to  it  as 
such.' 

§  7.  Right  of  flowage—  Water  privilege.  AVhere  a  grant 
is  made  of  land  bounded  on  or  near  a  pond  or  stream,  but  re- 
serving tlie  mill  and  water  privilege,  this  is  a  reservation  of 
the  right  of  flowing  the  land  so  far  as  necessary  or  convenient 
or  so  far  as  it  has  been  usual  to  flow  it  for  that  purpose;^  and 
such  flowage  will  not  constitute  an  incumbrance  within  the 
meaning  of  the  covenants  of  the  deed.* 

part  and  parts  thereof,  as  has  or  the  road  passed,  and  that  therefore 
have  been  lawfully  taken  for  a  pub-  only  the  easement  was  excepted, 
lie  road  or  roads,"  held  to  be  an  ex-  But  in  this  case  there  were  three  dis^ 
ception  of  the  land  covered  by  a  pub-  senting  opinions.  In  Leavitt  v. 
lie  highway  across  the  premises,  and  Towle,  8  N.  H.  96,  the  exception  was 
not  simply  of  the  easement  therein,  of  a  "road"  laid  out  through  the 
and  that  the  fee  of  sucli  land  re-  premises.  The  court  held  that  "a 
mained  in  the  grantor  and  passed  to  road  "  was  a  right  of  passage  merely, 
a  subsequent  purchaser  from  him.  and  the  soil  over  which  it  passed 
Munn  V.  Worrall,  53  N.  Y.  44.  And  would  not  be  transferred  by  a  con- 
see  Salisbury  v.  Andrews,  19  Pick,  veyance  of  the  road. 
(Mass.;  252.  ^Jackson  v.  Hathaway,  15  Johns. 

iln   Peck   V.  Smith,  1  Conn.    103,  (N.  Y.)447. 

which  is  the  leading  case  in  support  '  Mimn    v.    Worrall,   53  N.  Y.    44. 

of  this  position,  the  language  of  the  Compare  Elliot   v.   Small,  35  Minn, 

exception  was,  "saving  and  except-  396. 

ing  the  road  or  highway  laid  out,"  *  Petle  v.  Hawes,  13  Pick.  (Mass.) 

etc. ;  and  the  court  held  that  the  term  323. 

"highway  "or  "road"  did  not  nee-  *Pette  v.  Hawes,  13  Pick.  (Mass.) 

essarily  mean  the  land  over  which  323. 


RESERVATIONS    AND    EXCEPTIONS.  477 

§  8.  Light  and  air.  It  is  be3'ond  dispute  that  an  casement 
cannot  strictl}'  be  made  the  subject  eitlicr  of  exception  or  res- 
ervation in  a  deed  or  conveyance  of  land;  for  it  is  neither 
parcel  of  the  land  granted,  which  circumstance  is  requisite  to 
enable  a  thing  to  be  excepted,  nor  does  it  issue  out  of  the  laud, 
as  it  should  to  render  it  capable  of  being  the  subject  of  a  res- 
ervation. Hence,  where  an  easement  is  incorrectly  reserved 
to  a  grantor,  or  excepted  from  the  land  conveyed,  its  legal  ef- 
fect will  be  to  operate  as  a  grant  of  a  newl^'-created  privilege 
or  easement  by  the  grantee  of  the  land  to  the  grantor.'  These 
principles  apply  to  reservations  of  light  and  air;  and  where 
a  deed  contains  stipulations  for  the  ])reservation  of  the  then 
conditions  of  buildings  standing  upon  land  retained  b}"  the 
grantor,  or  even  with  reference  to  future  erections,  and  provides 
for  the  free  and  unobstructed  right  of  light  and  air  by  means 
of  windows  overlooking  the  tract  conveyed,  such  reservation 
will  be  construed  as  a  newly-created  easement  of  light  and  air 
from  the  vendee's  premises,  and  any  interference  l)y  him  which 
would  result  in  a  substantial  loss  of  these  privileges  will  be 
restrained  by  injunction.'- 

§  9.  Use  and  occupancy.  A  reservation  of  a  right  to  use 
and  occupy  the  granted  premises,  either  for  a  stated  term  of 
years  or  for  life,  is  ordinarily  created  by  the  employment  of 
those  words;  and  unless  there  is  some  special  stipulation  tend- 
ing to  show  that  such  reserved  right  of  occupancy  is  personal 
to  the  grantor  or  the  person  for  whom  the  reservation  was 

iRosenkrans  v.   Snovcr,   19  N.    J.  the  lands  of  B.  and  himself,  and  put 

Eq.  420.  in  his  building  several  windows  over- 

^  A.,  who  was  the  owner  of  a  strip  looking  B.'s  land.  B.  is  about  to 
of  land  fifty  feet  wide  and  two  erect  a  building  on  his  land  that  will 
hundred  and  twenty  feet  deej),  sold  close  two  of  A.'s  windows,  and  par- 
the  westerly  half  of  that  land  to  tially  close  two  othei-s.  Held,  tliat 
B.,  by  a  deed  which  contained  the  the  reservation  operates  as  a  grant  of 
following  reservation:  "Reserving  a  newly-created  easement,  at  least  to 
the  right  to  the  free  use  of  the  light  light  and  air  from  B.'s  premises,  and 
and  air  over  the  tract  above  de-  that,  if  it  had  been  made  to  appear 
scribed  in  case  he  should  build  on  that  the  interference  with  A.'s  win- 
the  common  line  between  the  par-  dows  would  result  in  his  substantial 
ties,  and  the  right  to  put  windows  in  loss  of  light  and  air,  ho  would  have 
said  building  overlooking  the  tract  been  entitled  to  an  injunction.  Hag- 
above  described,"  etc.  He  afterwards  erty  v.  Lee,  15  Atl.  Kep.  399.  Com- 
built  upon  the  common  line  between  pare  Wddtr  v.  Wheeldou,  5G  Vt.  344. 


478  CONVEYANCE. 

« 

created,  it  will  be  regarded  as  a  general  right  with  all  its  or- 
dinary legal  incident?.^  If  it  is  intended  to  make  the  reserva- 
tion personal  in  its  character,  limiting  the  use  to  the  grantor, 
the  language  employed  should  be  reasonably  clear  and  explicit 
to  that  effect;  otherwise  no  such  limitation  will  attach.^ 

§  10.  Reserved  rights  in  the  soil.  AVhile  in  a  majority  of 
cases  reservations  or  attempted  reservations  of  personal  rights 
in  the  grantor  are  made  with  reference  to  some  specific  use  in 
the  nature  of  an  casement,  3'et  it  not  infrequently  happens  that 
substantial  rights  in  the  soil  are  also  withheld  from  the  grant 
in  this  manner.  Among  the  most  common  of  this  class  is  the 
right  to  take  minerals.  Sometimes  the  reservation  is  clearly 
expressed  as  to  the  nature  or  character  of  the  minerals  thus 
reserved,  as  coal,  stone,  iron,  etc.,  but  more  frequently  parties 
are  content  with  general  references;  and  the  word  most  com- 
monly emplo3'ed  is  the  general  term  "minerals."  Allusion  has 
been  made  in  other  parts  of  this  work  to  the  embarrassment 
which  the  employment  of  this  term  often  occasions,  and  the 
dilhcult}"  which  courts  have  experienced  in  placing  upon  it  a 
proper  construction  when  used  as  a  description  in  a  grant. 
Such  a  reservation  would  certainly  carry  veins  and  beds  of 
ore,  and  usually  deposits  of  coal  and  other  fossils;  while  it 
would  not  be  doing  violence  to  language  to  permit  it  to  include 
strata  of  rocks,  chalk  or  salines,  all  of  which  may  be  obtained 
by  the  various  processes  known  as  mining.  Possibly  and 
under  certain  circumstances  it  might  be  made  to  include  clays 
and  other  earths.  Such  a  reservation,  however,  would  not  in- 
clude gases  or  earth  oils.' 

Reservations  of  this  character  are  frequently  so  broad  as  to 
be  repugnant  to  the  grant,  though  it  would  seem  that  great 
latitude  is  to  be  allowed  in  construction,^ 

1  Cooney  v.  Hayes,  40  Vt.  478.  at  an  end  and  determine,  and  the 

2  Thus,  a  clause  in  a  deed  "  reserv-  grantee  shall  have  full  possession 
ing  to  ourselves  the  right  to  use  and  thereof,"  held  not  to  be  a  limitation 
occupy  the  said  granted  premises  for  personal  in  its  nature,  but  general, 
five  yeai's,  if  we  choose  to  do  so  for  and  imports  the  right  to  occupy  per- 
that  length  of  time  from  the  date  of  sonally  or  by  tenants.  Cooney  v. 
this  deed ;  but  if  we  leave  tlie  posses-  Hayes,  40  Vt.  478. 

sion  and  occupancy  of  said  premises       3£)ur]iam  v.  Kirkpatrick,  101  Pa. 

before  the    expiration  of    said  five   St.  36. 

years,  then  this  reservation  shall  be       *Thus,   a  reservation,  "excepting 


EESEKVATION.S    AND    KXCEPTIONS.  479 

A  reservation  or  exception  of  mines,  minerals,  ore-beds,  etc., 
where  the  specific  thing  is  taken  out  of  the  grant,  must  be  dis- 
tinguished, however,  from  the  mere  reservation  of  a  riglit  to 
enter  and  take  the  same.  Tlius,  a  reservation  of  "  the  rifdit  of 
mining  on  the  granted  }»reniises  "  a  cerlain  quantity  of  ore 
annually  would  operate  onl}'  as  a  licouso  to  enter  and  mine;  it 
wcndil  give  no  title  to  the  land  or  to  the  ore  before  it  shoukl 
be  mined;  nor  would  it  restrict  the  grantee  from  mining  at 
the  same  time,  even  to  the  exhaustion  of  the  ore.' 

A  reservation  of  the  right  of  mining,  and  incidentally  of 
sinking  shafts,  etc.,  also  gives  to  the  grantor  the  right  to  place 
buildings  on  the  surface,  to  use  part  of  the  same  for  a  dump, 
and  generally  to  do  all  needful  and  proper  things  connected 
with  the  exercise  of  the  right.- 

§  11.  Standing  timlier.  A  very  common  exam])le  of  reser- 
vation or  exception  is  presented  in  many  parts  of  the  country 
where  stipulations  are  inserted  in  deeds  of  conveyance  with 
reference  to  trees  or  ''timber"  then  growing  upon  the  granted 
land.  Such  stipulations  are  generally  intended  for  exceptions, 
but  their  legal  effect  is  more  often  only  that  of  reservations. 
In  some  cases  the  timber  itself  is  reserved ;  and  the  courts  hold 
that  this  is  strictl3'an  exception,  since  it  Is  a  part  of  the  realty 
or  the  estate,  and  would  have  passed  to  the  grantee  but  for  the 
exception.  In  such  case  the  property  in  the  timber  continues 
in  the  grantor,  with  the  right  in  so  much  of  the  soil  as  is  nec- 
essary to  sustain  it.^  Usually,  however,  the  stipulation  only 
provides  for  a  right  to  cut  and  remove  the  timber  —a  fixed 

and  rt'servinp;  tlioreout  iir.to  A.   .    .    ,  glebe,  timber  and  waters.     Foster  v. 
all  and  all  manner  of  metals  and.  Runk,  109  Pa.  St.  291. 
minerals,  substances,  coah,  ores,  fos-  '  Stockbridge  Iron  Co.  v.  Hudson 
sils,  and  also  all  manner  of  coniposi-  Iron  Co.  107  Mass.  290.     It  was  held 
tions,  combinations  and  compounds  in    this   case,  however,  that  such  a 
of  any  or  all  the  foregoing  substances,  deed   might  be  reformed  in  equity, 
and   also  all   valuable  earths,   clay,  for   variance  througii   mutual    mis- 
stones,  paints  and  substances  for  the  take  from  the  previous  oral  contract 
manufacture  of  paints  upon  or  under  of  the  parties,  as  being  a  reservation 
the  said   tract  of  land,'*  held  to  re-  and  not  an  exception,  and  therefore 
serve  clay  suitable  for  making  bricks;  not  within  the  statute  of  frauds, 
and  that  the  reservation  was  not  to  -  Wardell  v.  Watson,  93  Mo.  107. 
be  construed  as  being  as  broad  as  tlie  ^  Howard  v.   Lincoln,    13  Me.   122; 
grunt,  the  grant  passing  the  ordinary  Rich  v.  ZeilsdorlT,  22  Wis.  5-14;  Wait 

v.  Baldwin,  GO  Mich.  622. 


480  CONVEYANCE. 

time  being  ordinarily  named  as  the  limit  in  \vhidi  the  right  is 
to  be  exercised.  In  this  event  the  stipulation  does  not  have  the 
effect  to  except  the  wood  from  the  grant,  but  merely  reserves 
a  right  to  enter,  cut  and  remove  it,  or  so  much  as  the  grantor 
7Tiay  be  able  to  cut  and  remove  within  the  time  specified  in 
the  deed.'  In  case  of  the  neglect  of  the  grantor  to  cut  and  re- 
move the  timber  within  the  time  specilied,  the  reservation 
would  lapse  and  the  estate  become  absolute  in  the  vendee.'^ 

But  where,  in  a  deed  granting  the  land,  the  timber  thereon 
is  expressly  excepted  from  the  grant,  the  title  to  the  timber 
remains  in  the  vendor,  who,  by  virtue  of  the  exception,  has  an 
implied  power  to  enter,  fell  and  take  it  away.''  His  title  to 
the  timber  arising  from  the  exception  in  the  deed  is  of  the 
same  binding  force  and  effect  as  if  the  vhole  estate  had  been 
originally  granted  and  a  deed  had  been  executed  to  him  from 
his  grantee  of  all  the  timber  upon  the  land.*  In  such  event 
the  right  to  enter  upon  the  land  and  cut  and  remove  timber 
at  pleasure  would  have  passed  as  an  incident  of  the  grant  and 
as  essential  to  the  enjoyment  of  the  right  of  property,  and  the 
right  is  equally  as  well  assured  in  an  exception.  Such  a  right, 
w^here  there  are  no  words  showing  a  limitation  of  the  time  of 
enjoyment  or  within  which  it  shall  be  exercised,  is  not  revo- 
cable; nor  can  it  be  terminated  at  the  will  of  the  owner  of  the 
land,  nor  by  notice  to  remove  the  timber  in  a  reasonable  time. 
The  right  does  not  rest  upon  the  notion  of  a  license  from  the 
grantee,  but  as  being  connected  with  the  exception  as  an  inci- 
dent to  its  enjoyment,  and  is  an  interest  in  the  land  itself  to 
that  extent.'^ 

§  12.  Reserved  rights  lost  by  disuse.  A  reserved  right 
may  be  lost  by  long  negligence  and  disuse;  and  the  presump- 
tions of  their  release  or  discharge  are  favored  for  the  sake  of 
quieting  possessions.^  Thus,  reservations  in  the  nature  of  a 
right  of  common,  or  other  easements  of  like  character,  may 
be  deemed  to  have  been  relinquished  where  there  has  been  no 

I  Pease  v.  Gibson,  6  Me.   81 ;  Reed       ^  Wait  v.  Baldwin,  GO  Mich.  622. 
V.    Merrifield,    10  Met.   (Mass.)    155;       5  Rich  v.   Zeilsdorflf,  22  Wis.  544; 

Martin  v.  Gilson,  37  Wis.  362.  Wait  v.  Baldwin,  60  Mich.  622. 

-' Rich  V.  Zeilsdorff,  22  Wis.  544.  ^Broeck  v.  Livingstone,   1  Johns. 

3  Boults  V.  Mitchell,  15  Pa.  St.  371;  Ch.  (N.  Y.)  357. 
Pierrepout  v.  Barnard,  6  N.  Y.  27i>. 


KE8ERVATION8    AND    EXCEPTIONS.  481 

exercise  of  the  right  for  a  long  period  of  time,  particularly 
where,  by  a  fair  construction  of  the  language  of  the  deed,  it  is 
apparent  that  it  was  not  the  intention  of  the  parties  as  ex- 
pressed by  the  reservation  that  the  land  should  always  con- 
tinue subject  to  the  servitude,  however  appropriated  by  the 
owner.*  Long  disuse,  in  such  a  case,  will  let  in  the  presump- 
tion of  a  release  or  other  discharge;  and  such  presumptions 
are  to  be  favorably  received  in  opposition  to  dormant  claims, 
because  they  conduce  to  the  repose  of  titles  and  the  security 
of  estates. 

1  As,  wliere  a  deed  in  fee  contained  where  it  appeared  that  the  premises 

a  reservation  of  the  right  of  "  cutting  had  been  inclosed  for   about  thirty 

and  hewing  timber  and  grazing  in  years,  and  the  right  during  that  pe- 

the  woods  not  appropriated  or  fenced  riod    had  not  been  claimed   or   ex- 

in,"  held,  that    the    right    reserved  ercised.     Broeck    v.    Livingstone,    1 

ceased  as  soon  as  the  premises  were  Johns.  Ch.  (N.  Y.)  357. 
fenced  in  by  the  grantee,  especially 
31 


482  CONVEYANCE. 

CHAPTER  XIX. 

EXECUTION. 

Art.     I.  Generally  Considered. 

Art.    II.  Signing. 

Art.  III.  Sealing. 

Art.  IV.  Delivery. 

Akt.  I.     Generally  Consideked. 


§  4.     Execution  in  blank. 
5.     Attesting  witnesses. 


§  1.     Definition. 

2.  Execution  by  corporation. 

3.  Variations  and  discrepancies. 

§  1.  Definition.  The  term  "execution"  primarily  means 
the  accomplishment  6f  a  thing  —  the  completion  of  an  act  or 
instrument;  and  in  this  sense  it  is  used  in  conve3'ancing  to  de- 
note the  final  consummation  of  a  contract  of  sale.  The  term 
properly  includes  only  those  acts  which  are  necessary  to  the 
full  completion  of  an  instrument,  which  are:  the  signature  of 
the  disposing  party,  the  affixing  of  his  seal  to  give  character 
to  the  instrument,  and  its  delivery  to  the  grantee.  Acknowl- 
edgment is  sometimes  included  in  the  term,  but  as  a  matter  of 
fact  the  act  of  acknowledgment  is  no  part  of  the  execution  of 
a  deed,  which,  if  in  all  other  respects  regular,  is  perfect  and 
complete  without  it;  nor  is  the  certificate  of  acknowledgment 
any  part  of  the  deed.  The  different  acts  of  execution  are  so 
essential  to  each  other  that  neither  can  be  dispensed  with;  but 
under  the  current  of  modern  decisions  sealing  is  perhaps  of 
the  least  importance,  and  though  this  is  still  an  indispensa- 
ble requisite  at  law,  in  equity  the  deed  may  be  effective  with- 
out it. 

§  2.  Execution  by  corporation.  Practically  there  is  no 
difference  between  the  deeds  of  corporations  and  those  of  or- 
dinary individuals,  and  the  solemnities  attending  their  execu- 
tion differ  only  in  the  fact  that  they  are  necessarily  the  work 
of  agents.  Originall}'  a  corporation  cou'd  speak  only  by  its 
corporate  seal,  and  by  this  it  authenticated  all  of  its  acts;' 

1  Thu?,  Blackstone  says:  "A  cor-  not  manifest  its  intentions  by  any 
poration  being  an  invisible  body  can-    personal    act  or    oral    discourse;    it 


EXECUTION.  493 

but  modern  comnici'co  and  the  gradual  change  of  business 
methods  have  greatly  clianged  this  rule,  and  corporations  may 
now  act  by  their  agents  the  same  as  natural  persons.  In 
grants  of  lands  it  is  still  customary  to  use  the  corporate  seal, 
but  in  addition  thereto  the  hand  of  some  of  its  officers  or 
agents  is  required,  either  with  or  without  the  affixing  of  the 
corporate  name. 

It  is  customary  and  proper  to  sign  a  deed  with  the  name  of 
the  corporation;'  but  unless  this  is  a  special  statutor}'  require- 
ment," such  a  method  is  not  necessary  to  impart  validity,'  for 
by  common  law  the  common  seal  is  itself  the  signature  of  the 
corporation.*  The  seal,  when  affixed  to  a  deed  or  contract  by 
])roper  authority,'^  is  not  distinguishable  in  its  legal  effect  from 
that  of  an  individual,  and  renders  the  instrument  a  specialty.* 

It  has  been  held  that  the  president  of  a  corporation  has  no 
power  as  such,  without  express  authorization  from  the  direct- 
ors, to  purchase  or  sell  real  property  in  the  name  of  the  cor- 
poration, and  that  an  instrument  executed  by  him  for  such 
purpose,  in  the  name  of  the  corporation  and  under  its  common 
seal,  without  the  authorization  of  the  directors,  may  be  shown 
to  be  void ;  and  further,  that  a  corporation  is  not  estopped  from 

therefore  acts  and  speaks  only  by  its  dcnce  that  it  was  affixed  by  proper 

common  seal.     For,  thougli  tiie  par-  authority,    Solomans  Lodge  v.  Mont- 

ticular  members   may  express  their  mallin,  .IS  Ga.  547;  Sheehan  v.  Davis, 

private  consents  to  any  act  by  words  17   Ohio  St.  571 ;  Lovett  v.  Saw-mill 

or  signing  their  names,  yet  this  does  Ass'n,  G  Paige  (N.  Y.),  54.     And  that 

not  bind  the  corporation;   it   is  the  in  affixing  such  seal  and  the  hands  of 

fixing   of   the   seal,    and   that   only,  the  officers,  such  officers  did  not  ex- 

which  unites  the  several  assents  of  ceed  their  authority.     Kansas  v,  R, 

the    individuals    who    compose    the  K.  Co.  77  Mo.  185. 
community,  and  makes  one  joint  as-       <»  Clark  v.  Mfg,   Co.   15  Wend.  (N. 

sent  of  the   whole."     1  Black,  Com,  Y,)  2oG;  Benoist  v,  Carondelet,  8  Mo. 

475,  250,     In  the  absence  of  the  common 

1  Flint  V.  Clinton  Co.  12  N.  H.  430;  seal,  or  of  proof  of  facts  whence  the 

and    see  Aug,    &    Ames    on    Corp.  authority  of  the  officers  of  a  corpo- 

§  3'25,  ration  to  execute  a  conveyance  may 

-See  Isham  v.   Iron  Co,  19  Vt.  251.  be  inferred,  such  autliority  can  only 

3  Osborne  V.  Tunis,  1  Dutch.  (N.  J.)  be  established   by  resolution   of  the 

633.  directors  or  trustees  entered  in  tlio 

<  Beckwith    v.   Windsor   Mfg.   Ct).  proper    book    of    the     corporation, 

14  Conn.  594;  Frankfort  Bank  v.  An-  Southern  Cal.  Colony  Ass'n  v.  Busta- 

derson,  3  A,  K,  Marsh.  (Ky.)  932,  mento,  52  Cal.  192. 

'The  seal  is  itself  iiriinu  facie  evi- 


48J-  CONVEYANCE. 

denying  the  validity  of  an  unauthorized  contract  made  by  its 
president  where  it  has  never  availed  itself  of  the  benefits  of 
such  contract.^  As  a  general  rule,  however,  the  president  of 
a  corporation  has  power  to  bind  it  within  the  scope  of  its 
powers;  and  as  its  rules  and  by-laws  are  not  usually  open  to 
]iublic  inspection,  particularly  where  the  home  oflfice  is  in  a 
distant  state,  such  rules  and  bj'-laws  can  have  no  appreciable 
eflfect  upon  persons  having  no  knowledge  of  their  existence; 
and  notwithstanding  such  officer  may  have  no  power  to  make 
contracts  or  conveyances  under  the  private  rules  and  regula- 
tions of  the  corporation,  yet  as  to  strangers  without  notice  it 
would  be  estopped  to  deny  the  powders  of  its  officers  to  per- 
form the  specific  acts.^ 

§  3.  Yariations  and  discrepancies.  As  deeds  are  usually 
drawn  by  a  conveyancer,  it-will  often  happen  thata  variance  will 
occur  between  the  name  inserted  in  the  body  of  the  instrument 
and  that  affixed  by  the  grantor  in  execution.  One  of  the  most 
common  discrepancies  of  this  character  is  the  omission  of  all 
or  part  of  the  middle  name  or  initials  or  the  substitution  of 
other  middle  names.  This  is  but  a  slight  defect,  however,  for 
the  law  knows  but  one  Christian  name,  and  the  omission  or 
insertion  of  a  middle  name  is  usually  an  immaterial  circum- 
stance.' Discrepancies  in  the  orthography  of  the  name  as 
written  by  the  scrivener  and  by  the  parties  upon  execution  are 
common;  but  as  these  matters  derive  their  main  importance 
from  the  effect  they  may  have  upon  the  title  when  forming 
the  subject  of  future  sales,  and  as  the  subject  has  already  been 
considered  in  treating  of  objections  to  title,  no  further  allusion 
will  be  made  to  it  at  this  time. 

It  sometimes  happens  that,  through  inadvertence  or  mis- 

1  Bliss  V.  Kavveah,  etc.  Co.  3  West  ceives  a  bond  from  a  corporation  for 

Coast  Rep.  (Cal.)  571.  a  deed  for  land  purchased ;  and  he 

-  Life   Ins.  Co.  v.  White,  106  111.  will  be  entitled  to  the  deed  according 

67.     A  purchaser  of  land  from  a  cor-  to  the  provisions  of  the  bond,  not- 

poration,  being  a  stranger  to  the  cor-  withstanding  there  was  no  order  of 

poration,  is  not  bound  to  know  that  the    board   of  directors  authorizing 

there  is  a  by-law  of  the  company  re-  the  sale.     Wait  v.  Smith,  92  111.  385. 

quiring    an    order  of  the  board  of  ^  james  v.  Stiles,   14  Pet.    (U.   S.) 

directors  to  authorize  a  sale  of  land  322 ;  Dunn  v.  Gaines,  1   McLean  (C. 

owned  by  the   company.     The  rule  Ct.),  321 ;   Erskine   v.    Davis,  25  111. 

is  the  same  where  a  purchaser  re-  251 ;  Scofield  v.  Jennings,  68  111.  232. 


EXECDTION.  485 

take,  tho  name  of  the  grantor  has  been  entirely  omitted  in  the 
body  of  the  deed;  and  while  it  has  been  held  that  one  who 
signs,  seals  and  delivers  a  deed  is  bound  by  such  acts  as 
grantor,  although  not  named  as  such  therein,'  the  current  of 
later  decisions  would  indicate  that  such  a  deed  is  ineffeotual 
to  convey  any  interest  or  pass  title."  "Where  onl}'  a  portion  of 
the  grantors  named  in  a  conveyance  sign  and  acknowledge  the 
same,  the  authorities  are  somewhat  divided  as  to  the  effect  of 
the  deed  —  some  holdmg  that,  where  the  deed  shows  that  it  was 
intended  to  be  jointly  executed  by  all  the  parties,  an  execu- 
tion and  delivery  by  a  portion  only  is  incomplete  and  does 
not  bind  them.*  A  majority  of  the  cases,  however,  favor  the 
contrarj'  doctrine,  and  seem  to  sustain  the  principle  that  the 
parties  executing  will  be  bound  thereby,  and  the  deed  be  suf- 
ficient to  pass  their  interests.* 

§  4.  Execution  in  blank.  It  is  axiomatic  that  to  every 
deed  there  must  be  at  least  two  parties,  the  one  capable  of 
conveying  and  the  other  of  receiving,  and  that  a  deed  without 
a  grantee  is  practically  no  deed  at  all.  The  exigencies  of 
modern  commerce,  aided  to  some  extent  by  the  familiar  prin- 
ciples of  estoppel,  have  in  a  measure  and  in  some  localities 
created  an  apparent  anomalous  exception  to  this  rule;  and 
while  no  court  has  gone  the  length  of  asserting  that  a  deed  in 
blank  is  operative  at  the  time  of  its  execution,  yet  the  con- 
struction of  instruments  of  this  character  has  formed  the  sub- 
ject of  a  number  of  decisions  tending  to  uphold  the  same  where 
the  grantee's  name  has  been  subsequently  inserted.  Thus,  it 
lias  been  held  that  one  who  has  signed  and  acknowledged 
deeds  in  blank,  and  furnished  them  to  an  agent  to  fill  the 
blanks  according  to  such  sales  as  he  may  make  for  the  grantor, 
and  deliver  the  deeds  to  the  purchaser,  is  estopped  to  deny 
that  a  deed  filled  up  and  delivered  to  a  purchaser  in  good 
faith  and  for  value  is  a  valid  deed  and  conveys  a  good  title.* 

1  Elliott  V.    Sleeper,  2  N.  H.  525;  <  Story,  Part.  §  119;  Parsons,  Part. 

Thompson  v.  Lovrein,  82  Pa.  St.  433.  g  309. 

■^Harrison    v.    Simmons.    55    Ala.  *  Pence  v.  Arbuckle,  22  Minn.  417; 

510;  Laughlin  v.  Fream,  14  W.  Va.  Ragsdale  v.  Robinson,  48  Tex.  379; 

322;  Peabody  v.  Hewitt,  52  Me.  33;  Owen  v.  Perry,  25  Iowa,  412;  Swartz 

Bank  v.  Rice,  4  How.  225.  v.    Ballon,   47  Iowa,  194-  Schintz  v. 

3  Arthur  v.  Anderson,  9  S.  C.  234.  McManny,   33  Wis.    299;   McNab  v. 

Young,  81  III.  11. 


48G  COXVEYANCB. 

Upon  this  jioiut  the  courts  scera  to  be  mainly  united,  and 
though  the  doctrine  has  received  some  dissent  the  volume  of 
authority  fairly  establishes  the  general  rule  as  stated.  Such 
a  deed,  however,  passes  no  title  upon  delivery  until  the  blanks 
are  filled  by  the  grantor  or  his  agent  by  his  authority;'  and 
it  has  been  hold  that,  if  the  name  of  a  grantee  is  afterwards  in- 
serted without  his  authority,  such  deed  will  not  become  suffi- 
cient for  the  purpose  of  passing  the  legal  title  merely  from  the 
fact  that  the  grantee  enters  into  possession  and  pays  the  pur- 
chase price.2 

The  agent  of  the  grantor  may  insert  the  name  of  one  who 
has  contracted  with  him  as  grantee  after  execution  of  a  deed 
upon  the  grantor's  authority;^  but  it  would  seem  he  has  no 
right,  even  upon  request  of  the  grantee,  whose  name  he  was 
instructed  to  insert,  to  insert  instead  the  name  of  another;* 
and,  while  an  innocent  purchaser  will  in  most  instances  be  pro- 
tected, a  deed  so  signed  may  always  be  avoided,  when  filled 
out  by  one  not  duly  authorized  by  the  grantor,  as  against  a 
grantee  with  full  knowledge  of  the  facts.^ 

There  is  another  phase  of  the  subject  which,  while  properly 
falling  within  the  principle  under  discussion,  is  nevertheless 
regarded  in  a  xcry  different  light.  This  occurs  in  the  case  of 
the  insertion  of  some  matter  having  reference  to  the  grantee, 
usually  for  the  purpose  of  better  identification;  and  where  an 
attempt  has  been  made  to  convey  to  a  designated  grantee,  but 
for  an}^  reason  such  grantee  has  been  imperfectly  described, 
named  or  designated,  it  has  been  held  that  the  execution  of  a 
deed  is  not  invalidated  by  the  insertion  of  a  part  of  the 
grantee's  name  by  his  attorney  after  delivery.^ 

The  objection  that  a  deed  was  executed  in  blank,  and  the 
name  of  the  grantee  inserted  after  delivery,  can  only  be  made 
by  the  grantor  or  one  claiming  through  or  in  right  of  him.'' 

§  5.  Attesting  witnesses.  A  deed  is  fully  executed  in  the 
proper  sense  of  the  term  when  it  has  been  signed,  sealed  and 
delivered.     No  other  acts  were  required  at  common  law,  and 

>  Adamson  v.  Hartnian,  40  Ark.  58.  ^  Schintz  v,  McManny,  33  Wis.  299. 

2  Deai-guello  v.  Bours,  67  Cal.  447 ;  »  Cooper  v.  Page,  62  Me.  192. 
and  see  Disen  v.  Eice,  33  Tex.  139.  «  Devin  v.  Hiuier,  29  Iowa,  297. 

3  Schintz  V.  McManny,  33  Wis.  299;  "  McNab  v.  Young,  81  111.  11. 
McNabv.  Young,  81  111.  11. 


EXECUTION.  487 

the  deed  was  considered  complete  when  this  had  been  accom- 
plished. Attesting  witnesses  were  sometimes  employed,  but 
this  was  only  for  the  purpose  of  preserving  the  evidence;' 
they  were  not  considered  necessary  to  give  validity  to  the 
deed,  and  ])roof  of  the  handwriting  of  the  grantor  was  con- 
sidered sullicient  when  the  execution  of  the  instrument  was 
called  in  question.-  In  many  of  the  states  the  rule  of  the  com- 
mon law  has  been  retained,  and  no  attesting  witnesses  are  re- 
quired;' in  others  a  witness  or  witnesses  are  necessary  where 
the  deed  has  not  been  acknowledged,^  or  to  make  proof  of 
deed;'*  while  in  others  a  peremptor}'^  mandate  of  the  statute 
requires  one  or  more  witnesses  to  imjuirt  legal  validity  to  the 
deed.® 

With  respect  to  the  method  in  which  an  attesting  witness 
should  evidence  that  fact,  it  does  not  seem  that  the  rules  are 
any  different  from  those  which  govern  the  affi.xing  of  the 
grantor's  signature;  hence  it  has  been  held  that  a  person  who 
cannot  write,  but  who  makes  his  mark  or  uses  any  other  de- 
vice by  which  he  or  others  may  identify  him  witlf  the  trans- 
action, is  a  competent  attesting  witness  to  the  execution  of  a 
deed.^ 

A  deed  attested  by  subscribing  witnesses  will  be  presumed 
to  have  been  duly  witnessed ;  *•  and  if  it  has  been  duly  acknowl- 
edged, although  there  appears  to  have  been  subscribing  wit- 
nesses, it  is  not  necessary  to  call  them  for  the  purpose  of 
jiroving  its  execution.^  In  the  absence  of  acknowledgment 
subscribing  witnesses  are  material,  whenever  the  deed  is  called 
in  question,  for  the  purpose  of  proving  execution;  and  in  such 

1 2  Black.  Com.  307.  *  All  of  the  above  and  Kansas. 

2  See  Meuley  v.  Zeigler,  23  Tex.  88 ;  '"  This  is  the  law  in  Arkansas,  Con- 
Tliaclier  v.  Phinney,  7  Allen  (Mass.),  necticut,  Delaware  (one  witness), 
149;  1  Wood's  Conv.  239.  Florida,    Georgia,    Louisiana,    Mary- 

3  Such  is  the  case  in  California,  Da-  land  (one  witness),  Michigan,  Minne- 
kota,  Illinois,  Indiana,  Iowa,  Kansas  sota,  Mississippi  (one  or  more),  Ne- 
(oxcept  to  prove  deed),  ISIaine,  Massa-  braska  (one  witness).  New  Hamp- 
chusetts,  Missouri,  Nevada,  New  Jer-  shire,  New  York  (one),  Ohio,  Oregon, 
Bey,  North  Carolina,  Pennsylvania,  South  Cai-olina,  Utah  (one),  Vermont, 
Rhode  Island,  Tennessee,  Texas  and  Wisconsin. 

West  Virginia.  "Tatom  v.  Wliite,  95  N.  C.  453. 

*  As  in  Alabama,  Idaho,  Kentucky,  **  Ilrouska  v.  Janke,  66  Wis.  252. 

Montana,  North  Carolina,  Tennessee,  sgimuions  v.  Uaveu,  101  N.  Y.  427. 
Texas,  Virginia  and  West  Virginia. 


488  CONVEYANCE. 

event  the  testimony  of  the  witness  authenticating  his  own  sig- 
nature is  usually  all  that  is  required.' 

J  In  Russell  V.  Coffin,  8  Pick.  (Mass.)  his  handwriting,  though  he  did  not 
it  was  held  that  the  execution  of  a  recollect  witnessing  it,  and  that  he 
deed  was  sufficiently  proved  for  the  thought  the  signature  of  the  other 
purpose  of  reading  it  in  evidence,  witness,  who  was  out  of  the  com- 
where  one  of  two  witnesses  deposed  monwealth,  was  his  handwriting, 
that  he  knew  the  attestation  to  be  in 


EXECUTION.  489 


Art.  II.     Signing. 

§  1.     General  principles. 

2.  Method  of  signini?. 

3,  Signature  by  mark. 

§  1.  General  principles.  While  all  of  the  different  acts  of 
execution  are  to  a  greater  or  less  extent  necessary  to  the  va- 
lidity of  a  deed,  yet  it  derives  its  main  efficacy  from  the  sig- 
nature; for  an  unsigned  instrument,  though  duly  attested, 
acknov/ledged  and  delivered,  is  a  nullity.^  There  are  decis- 
ions in  some  localities  which  seem  in  a  measure  to  militate 
against  this  doctrine,  and  to  indicate  that  a  deed  is  not  neces- 
sarily void  because  the  grantor's  najne  is  not  subscribed  to  it, 
provided  it  is  written  in  his  own  handwriting,  and  so  placed 
in  the  body  of  the  deed  as  to  control  the  grant.^  The  ques- 
tion in  such  case  becomes  one  of  intention,  and  may  be  con- 
sidered by  a  jury  in  connection  with  other  circumstances.  The 
principle,  however,  is  not  affected  by  these  decisions,  and  all 
the  auliiorities  concur  that  a  signing  of  some  sort  is  absolutely 
necessary  to  impart  vitality  to  a  grant  by  deed. 

By  the  old  rules  of  the  common  law  a  signature  was  not 
considered  necessary  to  the  validity  of  a  deed,  the  seal  being 
sufficient  to  show  assent  and  execution.  This  was  doubtless 
occasioned  by  reason  of  the  very  general  inability  of  the  mass 
of  the  people  to  read  or  write,'^  and  the  ir.«.))ortance  which  was 
formerly  attached  to  seals  as  the  signets  of  their  owners.  It 
would  seem,  however,  that  under  the  Saxon  rule  signing  was 
in  general  use,  provided  the  parties  were  able  to  write,  and 
whether  they  could  write  or  not  it  was  customary  to  affix  the 
sign  of  the  cross;  but  on  the  Norman  conquest  waxen  seals, 
usually  of  specific  device,  were  introduced  and  took  the  place 
of  the  Saxon  method  of  signing  by  writing  the  name  and 
making  the  sign  of  the  cross. 

By  the  statute  of  29  Charles  II.,  for  the  prevention  of  frauds 
and  perjuries,  all  transfers  of  land  were  required  to  be  put  in 
writing  and  signed  by  the  parties  making  the  same;  and  this 

•  Goodman  v,  Randall,  44  Conn.  -  Saunders  v.  Hackney,  10  Lea 
325;  Jones  v.  Gurlie,  Gl  Miss.  423.         (Tenn.),  194. 

» See  1  Reeve's  Hist.  Eng.  Law,  184. 


400  CONVEYANCE. 

statute  is  the  foundation  of  all  the  American  laws  upon  the 
same  topic' 

§  2.  Method  of  signing.  AVhile  the  law  is  strenuous  in  its 
demands  that  the  deed  of  a  grantor  must  be  attested  by  his 
signature,  it  is  equally  lenient  as  to  the  method  by  which  such 
signature  shall  be  applied.  Thus,  the  deed  may  be  signed  by 
the  grantor  himself  or  by  some  other  person  acting  for  him. 
In  the  latter  event  the  person  so  assuming  to  act  must,  of  course, 
have  a  proper  authorization  so  to  do ;  and  this  authority  must  be 
of  a  character  equal  in  dignity  to  the  instrument  to  which  the 
principal's  name  is  appended.  In  case  of  a  deed,  being  an  in- 
strument under  seal,  the  authorization  must  itself  be  under  seal. 
But  to  the  rule  last  stated  an  important  exception  has  been 
made  in  many  states,  by  which,  if  the  name  of  the  grantor  is 
affixed  by  some  other  person,  at  his  request  and  in  his  pres- 
ence, such  a  signing  is  made  as  effectual  for  all  intents  and 
purposes  as  though  it  had  been  the  grantor's  personal  act.^  It 
is  contended  in  support  of  this  doctrine  that  the  disposing  ca- 
pacity and  the  act  of  the  mind  are  the  only  essential  and  effi- 
cient ingredients  which  go  to  constitute  the  act  of  grant, 
n  Hence,  if  these  are  present,  though  the  name  be  written  by 
another  hand,  yet,  if  in  the  presence  and  at  the  request  of  the 
grantor,  it  is  his  act.  The  simple  fact  that,  through  incapacity 
or  weakness  or  any  other  reason,  the  grantor  uses  the  hands  of 
another  instead  of  his  own  to  do  the  physical  act  of  making  a 
written  sign  is  of  no  consequence,  and  the  signing  is  as  much 
his  act  as  if  he  held  the  pen  and  his  hand  was  guided  by  an- 
other. To  hold  otherwise,  it  is  said,  would  be  to  decide  that  a 
person  having  a  full  mind  and  clear  capacity,  but  through 
physical  inability  incapable  of  making  a  mark,  could  never 
make  a  conveyance  or  execute  a  deed;  for  the  same  incapacity 
to  sign  and  seal  the  principal  deed  would  prevent  him  from 
executing  a  letter  of  attorney  under  seal.*     In  opposition,  to 

'  In  Blackstone's  time  signing  does  (Mass.)  483;  Frost  v.  Deering,  21  Me. 

not  seem  to  liave  been  essential,  al-  156;  Goodell  v.   Bates,   14  R.  I.  65; 

though  he  says  (1  Com.  305):  "  It  is  Jansen  v.  Cahill,  22  Cal.  563:  Conlan 

said  to   be   requisite  that  the  party  v.  Grace,  86  Minn.  276. 
whose  deed  it  is  should  seal,  and       3  Gardner    v.     Gardner,    5    Cush. 

now,    in    most  cases,  I    apprehend,  (Mass.)  483;  Life  Ins.  Co.  v.  Brown, 

should  sign  it  also."  30  N.  J.  Eq.  193. 

2  Gardner    v.    Gardner,     5    Cush. 


EXECUTION.  491 

this  doctrine  there  are  a  few  cases  which  have  arisen  in  the 
construction  of  local  statutes;  ^  but  the  entire  current  of  mod- 
ern authority  is  in  support  of  the  rule  that  a  deed  is  properly 
and  sufficiently  signed  where  the  grantor's  name  is  allixed  by 
another,  if  done  at  his  request  and  in  his  presence,  and  the 
question  of  physical  incapacity  is  imraaterial.' 

A  still  further  exception  has  been  made  in  some  states,  where 
a  signature,  though  subscril)ed  by  another  hand  and  in  the  ab- 
sence of  the  grantor,  is  nevertheless  subsequently  recognized 
and  adopted  by  the  grantor  as  his  own;''  and  a  person  who 
ai)|)ears  before  a  magistrate  and  duly  acknowledges  the  exe- 
cution of  a  deed  to  which  his  name  has  been  appended  by 
another  in  his  absence  is  held  to  recognize  and  adopt  such  sig- 
nature/ A  deed  so  ratified  has  been  held  to  be  valid  and 
effectual  for  all  purposes.* 

§  3.  Signature  by  mark.  As  the  true  meaning  of  a  sig- 
nature is  to  evidence  the  disposing  purpose  of  the  grantor,  it 
follows  that  any  act  of  his  plainl}^  evincing  intention  will  be 
binding  upon  him;  and  while  his  name  appended  by  his  own 
hand,  is  the  highest  and  best  evidence  of  such  intention,  yet 
any  other  unequivocal  act  done  or  directed  by  him  will  be 
equally  effective.  Hence  it  is  that  a  person  ph3'sically  unable 
or  too  illiterate  to  write  his  name  may  sign  by  any  arbitrary 
symbol  —  a  cross,  a  crooked  line,  or  any  other  device  intended 
by  him  as  a  sign-manual;  and  the  adoption  of  such  mark  or 
device,  if  the  deed  is  in  other  respects  regular,  will  be  as  ef- 
fective to  transfer  the  estate  as  if  his  name  had  been  written 
thereon  in  full  by  himself."  A  grantor's  mark  may  be  made 
by  himself,  or  by  merely  touching  the  pen  in  the  hands  of  an- 
other.' 

A  grantor  may  sign  by  a  mark,  even  though  able  to  write ; 
and  instances  are  frequent  where  parties  have  resorted  to  a 

'See    Wallace    v.    McCuUough,    1  3 Greenfield  Bank  v.  Crafts,  4  Al- 

Rich.  Eq.  (S.  C.)  42G.  len  (Mass.),  447. 

-If  a  grantor  acknowledges   and  •*  Bartlett  v.  Drake,  100  Mass.  174. 

delivers  a  deed  to  which  his  name  *  White  v.  Graves,  107  Mass,  32^. 

has  been  affixed  by  the  grantee  the  •'Truman  v.  Love,  14  Ohio  St.  144; 

deed  is  valid.     Clough  v.  Clough,  73  Life  Ins.  Co.  v.  Brown,  30  N.  J.  Eq. 

Me.  487.  193;  Sellers  v.  Sellers,  98  N.  C.  13. 

'  Harris  v.  Harris,  59  Cal.  620. 


492  CONVEYANCE. 

mark  as  the  result  of  temporary  causes,  difficulty  in  writings 
or  other  reasons,  and  not  from  inability  to  write.  The  only 
serious  consequence  arising  from  such  a  practice  is  the  ap- 
parent want  of  identity  where  a  mark  is  used  in  one  case  and 
a  written  signature  in  another;  but  this  is  but  a  slight  circum- 
stance where  both  instruments  are  properly  acknowledged.^ 

It  is  customary  and  proper  to  write  the  words  "his  mark" 
over  or  near  the  device  made  or  adopted  by  the  marksman, 
yet  this  is  not  essential;  it  is  sufficient  in  every  case  if  it  ap- 
pears that  he  in  fact  made  the  mark  or  adopted  it.^ 

1  Mackay  v.  Easton,  19  Wall.  (U.  S.)       2  Sellers  v.  Sellers,  98  N.  C.  13. 
619. 


EXECUTION.  493 


Art.  III.     Skauxg. 


§  1.     General  views  — Definition.        l  §  3.     Method  of  sealing. 
3.     Necessity  of  seal.  1      4.     Omission  of  seal. 

§  1.  Oeiieral  views  —  Definition.  A  seal,  as  defined  by  all 
of  the  earlier  commentators  and  legal  lexicographers,  is  "an 
impression  upon  wax,  wafer  or  some  other  tenacious  substance 
capable  of  being  impressed."  Originally  wax  was  exclusively 
employed  for  this  purpose,  which  subsequently  became  in  a 
measure  supplanted  by  a  composite  wafer  having  the  same 
general  characteristics.  At  the  present  time  neither  wax  nor 
wafer  is  in  general  use,  as  paper  has  been  found  to  possess  all 
the  essential  qualities  of  both  of  these  articles,  and  to  be  fully 
as  capable  of  being  impressed  by  the  devices  now  in  common 
use.  The  convenience  of  wax  was  its  first  and  only  recom- 
mendation;  but  as  it  is  the  impression  and  not  the  wax  which 
constitutes  the  seal,  any  other  adhesive  substance  capable  of 
receiving  an  impression  is  held  to  come  within  the  definition.* 

But  while  any  impression  is  good  as  a  common-law  seal,  the 
general  disuse  of  private  seals  has  led  to  the  substitution  of 
other  methods  to  indicate  the  fact  of  sealing;  and  courts,  con- 
forming to  the  changed  conditions  of  the  people,  have  relaxed 
the  ancient  rules  in  this  respect.  A  piece  of  colored  paper  ap- 
parently aflixed  as  a  seal,  but  without  impression  or  device  of 
any  kind,  has  been  held  to  be  a  sufficient  sealing.^     So,  also,  a 

1  Pillow  V.  Roberts,  13  How.  (U.  S.)  by  tlie  Normans  after  the  conquest, 
473;  Carter  v.  Burley,  9  N.  H.  558.  who  caused  the  ancient  Saxon  con- 
Although  tlie  custom  of  using  a  seal  tracts  and  writings  to  be  sealed  with 
seems  to  have  prevailed  in  oriental  waxen  seals  in  the  presence  of  wit- 
nations  from  the  most  remote  an-  nesses,  and  gave  them  the  names  of 
tiquity  down  to  the  present  time,  yet  charters  or  deeds, 
this  method  of  authenticating  con-  2 Turner  v.  Field,  44  Mo.  382.  This 
tracts  and  writings  appears  to  have  is  a  very  instructive  case  on  this  sub- 
been  almost  unknown  in  England  ject  and  contains  some  very  ingeni- 
prior  to  the  conquest.  Under  the  ous  arguments;  as,  for  instance,  the 
Anglo-Saxon  government,  contracts,  court  holds  that  inasmuch  as  the  col- 
written  declarations  and  memorials  ored  paper,  which  was  applied  to  a 
were  solemnly  ratified  with  the  sign  wafer  and  caused  to  adhere,  must 
of  the  cross  in  the  presence  of  numer-  from  a  physical  necessity  have  made 
ous  witnesses,  and  derived  all  their  an  impression,  such  impression  would 
force  and  efficacy  from  their  public-  be  sullicient  to  comply  with  the  re- 
ity.  The  general  practice  of  sealing  quiremeut  of  law. 
was  introduced  and  brought  into  use 


494  CONVEYANCE. 

direct  impression  on  the  paper  which  contains  the  writing  is 
now  regarded  as  a  good  and  sufficient  seal;  while  it  is  a  com- 
mon provision  in  the  statutes  of  many  states  that  every  in- 
strument to  which  the  maker  aflixes  a  scroll  b}'  way  of  seal 
sliall  be  of  the  same  force  and  obligation  as  if  it  were  actually 
scaled,  provided  the  maker  shall  in  the  instrument  recognize 
such  scroll  as  having  been  affixed  for  such  purpose.* 

It  may  be  stated,  however,  that  the  world  has  outgrown  the 
necessities  of  an  age  when  men  made  their  seals  because  they 
could  not  write.  What  then,  from  necessity,  attested  the  very 
act  of  execution  and  the  genuineness  of  it  is  now  but  a  mere 
arbitrary  form,  preserved  only  as  a  technical  requirement  in 
support  of  the  long-established  distinction  between  writings 
'*  under  seal"  and  those  which  are  not.  A  seal  does  not  in 
any  wa}'  affect  the  substance  of  the  instrument  or  add  to  or 
detract  from  the  obligation  which  it  purports,  and  in  a  num- 
ber of  states  its  use  has  been  discontinued.  But  in  those 
states  where  the  distinction  between  sealed  and  unsealed  in- 
struments has  been  preserved,  while  the  law  has  become  re- 
laxed in  favor  of  custom  and  convenience  in  doing  business, 
yet  this  relaxation  is  confined  to  the  manner  of  making  the 
seal  onl\\  Scaling  and  delivery  is  still  the  criterion  of  a  spe- 
cialty. 

§  2.  Necessity  of  a  seal.  Notwithstanding  that  seali  ng  has 
now  become  a  matter  of  minor  importance,  both  as  to  the 
seal  itself  and  the  method  of  its  affixment,  yet,  except  where 
it  has  been  expressly  dispensed  with  by  law,  it  is  still  one  of 
the  essential  acts  of  execution.  It  is  immaterial  how  the  par- 
ties may  express  the  act,  whether  by  a  device  on  wax  or  wafer, 
or  an  impression  on  the  paper,  or  simply  an  arbitrary  mark 
with  the  pen  upon  the  loci  sigiUiim^  provided  it  was  intended 
for  a  seal,  and  to  give  effect  to  the  writing  as  a  sealed  instru- 
ment. It  is  the  seal,  however,  which  imparts  special  char- 
acter to  the  conveyance,  and  makes  it  in  fact  a  deed.^     But 

1  See  Haseltine  v.  Donahue,  43  Wis.  365 ;  Alexander  v.  Polk,  39  Miss.  737 ; 

576;  Hudson  v.  Poindexter,  42  Miss.  Taylor  v.  Glaser,  2  S.  &  R.  (Pa.)  502; 

304;  Glasscock  v.   Glasscock,    8  Me.  and  see  McCabe  v.  Hunter.  7  Mo.  355; 

577;  Cummins   v.  WcoJruff,  5   Ark.  Jackson   v.  Wood,   12  Johns.  (N.  Y.) 

IIG:  Carter    v.    Penn,    4    Ala.    140;  242;    Floyd   v.    Ricks,    14   Ark.  286: 

Fietnming  v.  Powell,  2  Tex.  225.  Underwood   v.    Campbell,   14  N.   H. 

-Taylor  V.  Morton,  5    Dana   iKy.),  393, 


EXECUTION.  495 

while  a  paper  purporting  to  be  a  deed  is  not  valid  for  the  pur- 
pose of  conveying  title  unless  it  is  under  seal,  yet  it  seeins  that 
when  a  person  enters  into  possession  under  such  a  paper,  it  is 
admissible  in  evidence  l\)r  the  purpose  of  showing  the  extent 
of  his  possession,  and  what  he  claimed  by  his  possession.^ 

In  a  number  of  stales  seals,  except  to  authenticate  the  acts 
of  corporations  and  ministerial  ollicers,  have  been  dispensed 
with;^  while  in  those  states  in  which  a  seal  is  still  required  to 
deeds  of  conveyance  the  old  doctrine  in  relation  to  their  use 
has  been  greatly  relaxed. 

Nor  is  it  essential,  in  case  of  more  than  one  grantor,  that 
every  person  signing  the  deed  shall  also  formall}'  seal  it;  and 
a  neglect  in  this  particular  will  not  have  the  effect  to  vitiate 
the  deed,  provided  there  is  evidence  of  an  intention  to  seal. 
In  such  case  the  grantor  neglecting  to  seal  is  presumed  to 
have  adopted  any  seal  or  scrawl  that  may  be  annexed  to  the 
name  of  one  of  his  co-signers. 

§  3.  Method  of  sealing.  AVax  has  long  since  fallen  into  dis- 
use even  in  the  execution  of  documents  of  the  highest  char- 
acter, while  the  old  time  "signet"  is  preserved  only  as  a  me- 
mento of  the  ])ast,  the  same  as  any  other  interesting  relic  of  a 
by-gone  age.  The  m:iss  of  the  people  have  no  distinctive  de- 
vice by  way  of  a  seal  which  they  may  use  by  hereditary  right, 
and  few  have  cared  to  adopt  such  devices.  Xor  is  an}^  attempt 
ever  made  to  fullill  the  common-law  condition  that  a  seal  must 
be  an  "  impression ;"  while  the  statute  has  practically  abrogated 
the  last  vestige  of  common-law  private  seals  by  declaring  that 
a  "  scrawl "  or  "  scroll "  shall  be  of  the  same  effect  and  obliga- 
tion as  a  seal  whenever  it  appears  from  the  body  of  the  instru- 
ment, the  scrawl  itself,  or  the  place  where  it  is  affi.Ked,  that 
such  scrawl  was  intended  for  a  seal.  The  word  ''seal''  at  the 
end  of  the  grantor's  signature,  the  letters  "  L.  IS.,"*or  any 
olher  device  manifesting  intent,  will  have  the  same  effect;  and 
generally  an  instrument  will  be  treated  as  sealed  where  evi- 
dence of  the  intent  to  affix  a  seal  is  clear.* 

'  Barger  v.  Ilobbs,  07  111.  593.  tana,       Nebraska,      Tennessee      ami 

-  Seals  are  no  longer  required   in  Texas. 

Alabama,  Arkansas,  California,  Da-  » Burton  v.  Le  Roy,  5  Sawyer  (C. 

k)ta,  Indiana,    Iowa.    Kansas,   Ken-  Ct.),  510;  McCarley  v.  Supervisors.  58 

lucky,  Louisiana,    Mississippi,    Mon-  Miss.  483;  Groner  v.  Sniitli,  49   Mo. 


406  CONVEYANCE. 

As  to  what  shall  be  considered  a  "scroll,"  there  is  no  rule  or 
precise  definition.  It  may  consist  of  a  mere  outline  without 
any  inclosure;  may  have  a  light  ground  or  a  dark  one;  may 
be  in  the  form  of  a  circle,  an  ellipse  or  an  irregular  figure;  or 
it  may  be  a  simple  dash  or  flourish  of  the  pen.  Its  precise 
form  cannot  be  defined,  and  in  each  case  depends  wholly  upon 
the  taste  or  fancy  of  the  person  who  makes  it.' 

It  is  customary  and  proper  to  recite  that  the  grantor  has 
affixed  his  seal,  and  a  well-informed  conveyancer  will  always 
insert  such  a  recital  in  the  testimonium  clause.  While  the  at- 
testation clause  usually  consists  of  the  words  "signed  and 
sealed,"  yet  it  is  not  necessary  to  state  in  the  deed  or  in  the 
witnessing  clause  that  the  grantor  has  affixed  his  seal,  ia  order 
to  make  a  scrawl  a  seal,  if  it  is  apparent  from  the  instrument 
and  the  circumstances  under  which  it  was  executed  that  it 
was  intended  to  adopt  the  scrawl  as  a  seal;^  and  where  a 
scrawl  is  allowed  for  a  seal,  a  writing  having  the  word  "seal" 
against  the  maker's  signature  is  a  sealed  instrument  —  the  word 
"seal"  in  such  a  case  being  equivalent  to  a  scrawl.^ 

Notwithstanding  that  the  instrument  usually  recites  that 
the  grantor  or  person  executing  has  affixed  his  seal,  it  very 
rarely  happens  that  the  party  executing  seals  the  writing  with 
his  own  hands  or  with  his  own  seal,  the  wafer  or  scrawl  being 
usually  appended  by  the  scrivener  as  part  of  the  clerical  labor 
of  preparing  the  deed. 

It  would  seem,  therefore,  that  the  method  of  sealing  is 
wholly  immaterial,  provided  the  deed  purports  to  be  a  sealed 
instrument,  and  affords  evidence  that  it  was  executed  and  de- 


318;  Lewis  v.  Overby,  28  Gratt.  (Va.)  would  seem,  however,  that  in  Maine, 

627;  Hudson  v.  Poindexter,  43  Miss.  Massachusetts,  New  Hampshire,  New 

304.     But  not  merely  because  it  con-  York,  Rhode  Island,  South  Carolina 

tains  a  recital  that  it  is  sealed.     Mc-  and  Vermont  a  common-law  seal  is 

Carley  v.  Supervisors,  58  Miss.  488.  still  required. 

A  scrawl  is  sufficient  in   the  states  i  See  Long  v.  Ramsey,  1  S.  &  R. 

of  Colorado,  Connecticut,  Delaware,  (Pa.)  72. 

Florida,  Georgia,  Illinois,  Maryland,  ^gm-fon  v.  Le  Roy,  5  Sawyer  (C 

Michigan,  Minnesota,   Missouri,  Ne-  Ct.),  510,     In  this  case  a  scroll  made 

vada.  New  Jersey,   North  Carolina,  with  a  pen  inclosing  the  letters  "L. 

Ohio,    Oregon,    Pennsylvania,    Yir-  S."  was  held  to  be  a  seal. 

ginia,  West  Virginia  and  Wisconsin,  3  Lewis  v.  Overby,  28  Gratt.  (Va.) 

and  in  the  territories  generally.     It  627. 


EXECUTION.  497 

livered  as  such ;  and  usuall}',  although  not  technically  under 
seal,  if  it  is  otherwise  in  form  it  will  at  least  be  sufficient  to 
convey  an  equitable  title,  and,  if  recorded,  affect  those  inter- 
ested with  constructive  notice  of  its  contents  as  fully  as  if 
sealed.^ 

It  has  been  held  that  where  the  record,  made  at  a  time  and 
under  a  law  permitting  the  registration  only  of  sealed  instru- 
ments, showed  an  instrument  in  form  a  proper  deed,  the  con- 
clusion, attestation  and  certificate  of  acknowledgment  all 
speaking  of  it  as  under  seal,  it  will  be  presumed  that  the  orig- 
inal was  sealed;-  and  generally,  where  a  deed  has  been  duly 
recorded,  the  existence  of  the  seal  to  the  original  will  be  pre- 
sumed from  the  statements  in  the  concluding  clause  of  the 
instrument  that  the  grantor  athxed  thereto  his  seal,  and  in  the 
attestation  clause  that  the  instrument  was  sealed  in  the  pres- 
ence of  the  witnesses;'  and  whether  or  not  it  was  the  legal 
duty  of  the  recorder  to  indicate  upon  the  record  whether  the 
instrument  was  sealed,  his  omission  to  do  so  will  not  overcome 
the  presumption.* 

§  4.  Omission  to  seal.  A  deed  without  a  seal  is  technically 
defective,  yet  not  so  much  so  as  to  render  it  nugatory;  for  the 
rule  is  well  settled  that  a  defective  conveyance  is  still  sufficient 
to  bind  the  lands  conveyed  in  the  hands  of  the  grantor  and  his 
heirs,  and  that  equity  will  interpose  for  the  relief  of  a  vendee 
who  has  taken  under  a  defective  conveyance,  and  compel  the 
grantor  and  all  who  claim  under  him  through  operation  of 
law,  as  well  as  subsequent  i)urchasers  with  notice,  to  make 
good  the  title.*  Such  an  instrument  would  not  in  many  cases 
be  allowed  to  operate  as  a  deed,  but  it  would  in  all  cases  be 
construed  as  a  valid  written  contract  conveying  an  equitable 
title  ;'^  and  where  it  appears  that  the  seal  was  omitted  by  mis- 
take, or  where  a  plain  intent  to  affix  a  seal  is  manifest,  it  has 
been  held  that  a  court  of  equity,  in  order  to  carry  out  the  in- 
tention of  the  grantor,  will,  at  the  suit  of  those  who  are  justly 

iGrandiii  v.    Hernandez,  29   Hun  ^  Starkweather  v,  Martin,  28  Mich. 

(N.  Y.),  o99.  471. 

2  Starkweatlier  v.  Martin,  28  ^licli.  5  ]^Iastin  v.  Halley,  61  Mo.  199. 
471.  sBrinkley     v.    Bethel,     9    Heisk. 

3  Le  Franc  v.  Richmond,  5  Sawyer  (Tenu.)  789. 
(C.  Ct.),  601. 

32 


498  CONVEYANCE. 

and  equitably  entitled  to  the  benefit  of  the  instrument,  adjudge 
it  to  be  as  valid  as  if  it  had  been  sealed,  and  will  grant  relief 
accordingly,  either  by  compelling  the  seal  to  be  affixed,  or  by 
restraining  the  setting  up  of  the  want  of  it  to  defeat  a  recov- 
ery at  law.^ 

1  Bernard's  Township  v.  Stebbins,  18  N.  J.  Eq.  165 ;  Rutland  v.  Paige, 
109  U.  S.  349;  Montville  v.  Haugh-  24  Vt.  181;  McCarley  v.  Supervisors, 
ton,  7  Conn.  543 ;  Green  v.  R.  R.  Co.    58  Miss.  486. 


EXECUTION. 


499 


Art.  IV.     Delivery. 


1. 

General  principles. 

§8. 

2. 

Theory  of  delivery. 

8. 

Intention  the  vital  principle  of 

9. 

delivery. 

10. 

4. 

Presumption  of  time  of  deliv- 
ery. 

11. 

5. 

Presumption  from  recording. 

12 

6. 

Presumption    from    possession 

13 

of  instrument. 

14 

7. 

Presumptions  in  case  of  volun- 

15 

tary  deeds. 

16 

No  presumption  from  execu- 
tion. 

Sufficiency  of  proof  of  delivery. 

Delivery  to  third  person. 

Delivery  to  take  effect  after 
death  of  grantor. 

Deed  retained  by  grantor. 

When  grantor  will  be  estopped. 

Revocation  and  redelivery. 

Delivery  in  escrow. 

Acceptance. 

§  1.  General  principles.  It  is  a  fundamental  rule,  estab- 
lished and  confirmed  by  the  entire  current  of  ancient  and 
modern  authority,  that  to  constitute  a  valid  transfer  of  the 
title  to  land  by  grant  there  must  be  a  delivery  of  the  deed  or 
instrument  purporting  to  convey  the  same.'  This  is  regarded 
as  the  final  act  which  consummates  and  confirms  the  convey- 
ance, without  which  all  other  formalities  are  ineffectual  ;2  and 
though  a  deed  may  be  duly  executed,  and  in  all  other  respects 
perfect,  yet  while  remaining  undelivered  in  the  hands  or 
under  the  control  of  the  grantor  it  passes  no  title.'  To  impart 
validity  there  must  be  a  manifestation,  either  by  actor  declara- 
tion, of  an  intention  on  the  part  of  the  grantor  to  give,  and  a 
reciprocal  intention  on  the  part  of  the  grantee  to  take,  and  it 
is  only  b}'  the  joint  concurrence  of  these  intentions  that  the 
devolution  of  title  becomes  complete.* 

Yet  thouuh  deliverv   is  essentiallv  a  solemn  observance  it 


1  Mitchell  V.  Bartlett,  51  N.  Y.  447: 
Stiles  V.  Brown.  16  Vt.  503;  Tisher 
V.  Beckwitlj,  30  Wis.  55;  Oliver  v. 
Stone,  24  Ga.  63 ;  Armstrong  v.  Sto- 
vall,  26  Miss.  275;  Overmann  v.  Kerr, 
17  Iowa,  486;  Rountree  v.  Little,  54 
111.  323;  Cannon  v.  Cannon,  26  N.  J. 
Eq.  316;  Jones  v.  Jones,  9  Conn.  Ill; 
Critchfield  v.  Critchfield,  24  Pa.  St. 
100 ;  Barr  v.  Schroeder,  32  Cal.  610. 

■■;  Williams  v.  Baker,  71  Pa.  St.  476; 
Borland  v.  Walrath,  33  Iowa,  130; 
Rowland    v.    Blake,    97   U.    S.    624; 


Brown  v.  Brown,  66  Me.  316;  Tisher 
v.  Beckwith,  30  Wis.  55. 

^  Byars  v.  Spencer,  101  111.  427 ; 
Egery  v.  Woodard,  56  Me.  45;  Fisher 
V.  Hall.  41  N.  Y.  416;  Burton  v. 
Boyd,  7  Kan.  17;  Duer  v.  James,  42 
Md.  492;  but  see  Wall  v.  Wall,  30 
Miss.  91. 

<Cline  v.  Jones,  111  111.  563;  Beai-s 
v.  Spencer,  101  111.  433;  Woodbury 
v.  Fisher,  20  lud.  388;  Parker  v.  Hill, 
8  Met.  (Mass.)  447;  Parmlee  v.  Simp- 
son, 5  Wall.  (U.  S.)  81;  Eames  v. 
Phipps,  12  Johns.  (N.  Y.)  418. 


500  CONVEVANCE. 

is  b}'^  no  moans  a  formal  onc,^  and  no  particular  act  or  set 
phrase  of  speech  is  necessary  to  constitute  a  legal  transfer. 
A  valid  delivery  may  be  effected  by  simpl\^  handing  the  in- 
strument to  the  grantee,^  or  to  some  third  person  for  him,'  or 
it  may  be  legally  delivered  without  being  actually  handed 
over,  provided  by  declaration  or  other  act  it  may  be  inferred 
that  the  grantor  intended  to  part  with  the  title;  *  and  if  once 
delivered  its  retention  by  the  grantor  will  not  invalidate  the 
deed  nor  affect  the  title  of  the  grantee.^  A  delivery  will  be 
presumed  where  the  deed  has  been  left  by  the  grantor  with 
the  proper  officer  for  record,^  or  may  be  inferred  from  the  fact 
that  it  is  found  in  the  possession  of  the  grantee,  unattended  by 
any  controlling  circumstances  to  the  contrary ; "  and,  generally, 
anything  done  b}?-  the  grantor  from  which  it  is  apparent  that 
a  delivery  was  intended,  either  words  or  acts  or  both  com- 
bined, is  sufficient.^ 

To  the  foregoing  general  rule  there  is,  however,  one  excep- 
tion, and  this  occurs  in  the  case  of  conveyances  by  the  state 
or  general  government.  In  such  instances,  unlike  convey- 
ances between  individuals,  a  formal  delivery  of  the  patent  or 
deed  is  not  essential  to  its  validity,  nor  will  the  non-delivery 
defeat  the  grant.  When  a  patent  has  been  duly  executed  and 
recorded  in  the  general  land  office,  it  becomes  a  solemn  public 

1  The  ordinary  and  simplest  mode  5  Wallace  v.  Berdell,  97  N.  Y.  IB 
of  delivery  is  the  actual  tradition  or  Burkholder  v.  Cased,  47  Ind.  418 
manual  transfer  of  the  instrument  Albert  v.  Burbank,  25  N.  J.  Eq.  404 
from  the  grantor  to  the  grantee  for  Thomas  v,  Groesbeck,  40  Tex.  530 
the  purpose  and  with  the  intention  Reed  v,  Douthit,  62  111.  348. 

of  passing  the  title  from  the  former  ^  Himes    v.    Keighblinger.    14    111. 

to  the  latter,  and   of  relinquishing  469;    Counard  v.  Calgan,  55  Iowa, 

all  power  and  control  over  the  in-  538;  Mallett  v.  Page,  8  Ohio  St.  367. 

strumcnt  itself.    But  the  actual  pass-  '  Newlin   v.  Beard,  6  W.  Va.  110; 

ing  of  the  deed  from  the  hands  of  the  Brittain  v.  Work,  13  Neb.  347. 

one  to  the  other  is  not  absolutely  es-  ^  Burkholder  v.  Cased,  47  Ind.  418; 

sentialinanycase.  Weber  v.  Christen,  Tallman    v.    Cooke,    39    Iowa,   402; 

121  111.  91.  Duer  v.  James,  42  Md.  492;  Warren 

2  Bogie  V.  Bogie,  35  Wis.  659.  v.    Sweet,   31   N.  H.  332;  Brown  v. 
3Henrichsen    v.    Hodgen,    67    111.  Brown,  66  Me.  316;  Thatcher  v.  St. 

179;    Stephens  v,    Rinehart,   72  Pa.  Andrew's  Church,  37  Mich.  264 ;  Can- 

St.   434;  Brown   v.    Brown,    66  Me.  non  v.   Cannon,   26  N.  J.   Eq.  316; 

316.  Hatch  v.  Hatch,  9  Mass.  309;  Rivard 

^Tallman    v.  Cooke,  39  Iowa,  402;  v.  Walter,  39  111.  415;    Mitchell    v. 

Walker  v.  Walker,  42  111.  311.  Ryan,  3  Ohio  St.  377. 


EXECUTION.  r^Ol 

act  of  the  government  and  needs  no  furtlior  deliveiy  to  miike 
it  perfect  and  valid,  and  the  title  to  the  land  conve3'ed  passes 
by  matter  of  record  to  the  grantee.'  Nor  is  it  necessary  in 
such  case  that  there  should  be  a  formal  acceptance  on  the  part 
of  the  grantee,  for  the  acts  required  to  be  done  by  him  in  the 
preparation  of  his  claim  are  equivalent  to  a  positive  demand 
for  the  patent;  and  although  no  one  can  be  compelled  by  the 
goveniMiL-nt  any  more  than  by  an  individual  to  become  a  pur- 
chaser, or  even  to  take  a  gift,  yet  where  there  is  no  dissent 
the  assent  and  acceptance  of  the  patentee  are  ahvavs  presumed 
from  the  beneficial  nature  of  the  grant.- 

"\Yhere  no  place  is  fixed  for  the  delivery  of  the  deed  bv  the 
articles  of  agreement,  the  vendor  is  bound  to  seek  the  vendee 
and  make  a  tender,  or,  if  the  vendee  appoint  a  place,  the 
vendor  may  tender  it  there,' 

§  2.  The  theory  of  delivery.  No  small  degree  of  the  im- 
portance attached  to  the  delivery  of  the  deed  in  modern  con- 
veyancing arises  from  the  fact  that  the  deed  has  taken  the 
place  of  the  ancient  livery  of  seizin  in  feudal  times,  when,  in 
order  to  give  effect  to  the  enfeoffment  of  the  new  tenant,  the 
act  of  delivering  possession  in  a  public  and  notorious  manner 
was  the  essential  evidence  of  the  investure  of  the  title  to  the 
land.  This  became  gradually  diminished  in  importance  until 
the  manual  delivery  of  a  piece  of  turf,  or  any  other  equally 
symbolical  act,  became  sufficient.  When  all  this  passed  away, 
and  the  creation  and  transfer  of  estates  by  a  written  instru- 
ment called  the  act  or  deed  of  the  party  became  the  usual 
mode,  the  instrument  was  at  first  delivered  on  the  land  in  lieu 
of  livery  of  sei/in,^  until  finally  any  delivery  of  the  deed,  or 
any  act  which  the  party  intended  to  stand  for  such  delivery, 
became  effectual  to  pass  the  title.^ 

1  United   States  v.  Schurz,  102  U.  on  Abstracts  of  Title,  127,  for  a  full 

S.   378;  Le   Roy  v.  Jamison,  3  Saw.  exposition  of  the  doctrine  of  govern- 

(C.  Ct.)   3(j9;  Houghton    v.   Harden-  mental  grants. 

berg,  53  Cal.  181;  Gilfnore  v.  Sapp,  ^  Fauchot  v.  Leach,  6  Cow.  (N.  Y.) 

100  111.  279.  50G. 

2Le  Roy   v.   Jamison,  3  Saw.  (C.  <Shep.    Touch.  C4;  Coke  on  Litt 

Ct.)   3G9;  Green   v.  Liter,  8  Crunch  26G6. 

(U.  S.),  247;  Gilmore  v.  Sapp,  100  111.  5  church  v.  Oilman,  15  Wend.  65G; 

279;    PieiTB    Mutelle    Case,    3    Op.  Warren  v.  Levitt,  11   Foster  (N.  H.), 

Atty.-Gen.   654;    and  see  Warvelle  340;  Hatch  v.  Hatch,  9  Mass.  306. 


502  CONVEYANCE. 

§  3.  Intention  the  Tital  principle  of  delivery.  The  ques- 
tion of  the  delivery  of  a  deed  is  always  one  of  intention; '  and 
the  mere  fact  that  an  instrument  of  conveyance  has  passed 
from  the  hands  of  the  owner  of  the  property  to  the  party 
named  therein  as  grantee  does  not  in  'itself  constitute  or 
establish  a  delivery .^  There  must  exist  as  well  the  intention 
to  convey,  and  this  intention  seasonably  manifested  must 
alwa3's  control.  So  again,  the  simple  fact  that  the  instrument 
still  remains  in  the  possession  of  the  grantor  does  not  neces- 
sarily imply  that  there  has  not  been  a  delivery,  for  here,  as  in 
the  former  case,  the  question  of  intent  comes  in  to  govern;  and 
where  the  circumstances  show  unmistakably  that  the  grantor 
intended  to  divest  himself  of  title  and  to  invest  the  same  in  the 
grantee  the  delivery  will  still  be  complete.'  Indeed,  any- 
thing which  clearly  manifests  the  intention  of  the  grantor  and 
the  person  to  whom  it  is  delivered  that  the  deed  shall  presently 
become  operative  and  effectual  will  constitute  a  sufficient  de- 
livery even  though  retained  by  neither  party  to  it.* 

Act  and  intention  are  the  two  elements  or  conditions  essen- 
tial to  a  delivery  of  a  deed.  The  act  may  be  a  manual  transfer 
of  the  instrument,  with  or  without  accompanying  words,  or  it 

1  Walker  v.  Walker,  43  111.  311 ;  the  notary  who  drew  it  to  send  it  to 
Nicol  V.  Davidson,  '6  Tenn,  Ch.  547;  the  recorder  for  registration,  but  the 
Gregory  v.  Walker,  38  Ala.  26;  notary  put  the  deed  in  his  safe  and 
Somers  v.  Pumphrey,  24  Ind.  231 ;  forgot  about  it  (Adams  v.  Ryan,  61 
Rogers  v.  Gary,  47  Mo.  235;  Duer  Iowa,  733), /ieZd  good  deliveries  on  the 
V.  James,  42  Md.  492 ;  Ruckman  v.  day  the  deeds  were  made.  So,  too, 
Ruckman,  32  N.  J.  Eq.  259;  Hastings  where  the  grantor  in  a  deed  lying  in 
V.  Vaughn,  5  Cal.  315.  the  presence  of  the  parties  to  it,  with 

2  Henry  v.  Carson,  96  Ind.  412;  the  intention  of  passing  the  estate 
Jordan  v.  Davis,  108  111.  336.  and  of  divesting  himself  of  all  power 

8  Ruckman  V.  Ruckman,  32  N.  J.  over  the  instrument  itself,  directs  the 
Eq.  259;  Scrugham  v.  Wood,  15  grantee  to  take  possession  of  it,  and 
Wend.  (N.  Y.)  545.  the  latter  signifies  his  assent,  the  de- 

'  *  As  where  a  deed  has  been  prop-  livery  will  be  complete  without  either 
erly  signed,  sealed,  attested  and  ac-  party  actually  touching  the  deed, 
knowledged  in  the  presence  of  both  Weber  v.  Christen,  121  111.  91.  And 
parties  and  the  certifying  officer,  and  see  Jackson  v.  Sheldon,  22  Me.  569; 
then  left  by  the  grantor  with  such  Walker  v.  Walker,  42  111.  311;  Arm- 
officer  and  never  called  for  (Jamison  strong  v.  Stovall,  26  Miss.  275 ;  Burk- 
V.  Craven,  4  Del.  Ch.  311),  or  where  a  holder  v.  Casad,  47  Ind.  418;  Dayton 
grantee  to  whom  and  in  whose  pres-  v.  Newman,  19  Pa.  St.  194. 
ence  a  deed  had  been  made  directed 


EXECUTION.  503 

may  be  a  purely  verbal  act,  as  when  the  grantee  is  simply  di- 
rected to  f,'o  and  get  the  deed  already  prepared  for  him;  but 
it  is  the  intention  which  gives  vitality  to  the  act,  whatever 
that  may  be.^  The  crucial  test  in  all  cases  is  the  intent  with 
which  the  act  or  acts  relied  on  as  the  equivalent  or  substitute 
for  actual  delivery  were  done;  and  this  intent  is  to  be  gathered 
from  the  conduct  of  the  parties,  particularly  of  the  grantor, 
and  all  the  surrounding  circumstances.- 

§  4.  Presumption  of  time  of  delivery.  It  is  not  customary 
to  insert  in  the  draft  of  a  deed  the  time  of  its  delivery;  and 
this  essential  point  has,  from  necessity,  been  made  to  depend 
largely  on  presumption.  Ordinarily  a  deed  will  be  presumed 
to  have  been  delivered  on  the  day  of  its  date,'  and  in  the  ab- 
sence of  any  date  at  the  time  of  its  acknowledgment.  This  pre- 
sumption, however,  is  one  of  convenience  only  —  it  is  never 
conclusive;  ^  and  the  true  date  of  delivery  ma}'  always  be  shown 
by  evidence  aliunde^  the  testimony  of  a  single  witness  being 
sufficient  for  this  purpose. 

It  has  been  held  that,  where  the  date  of  the  acknowledg- 
ment is  subsequent  to  the  date  given  in  the  body  of  the  deed, 
there  is  no  presumption  of  delivery  prior  to  the  acknowledg- 
ment; "and  it  is  not  to  be  denied  that  such  decisions  rest  upon 
plausible  grounds,  but  the  volume  of  authority  does  not  sus- 
tain this  doctrine.  The  date  of  execution,  therefore,  in  the 
absence  of  other  proof  to  the  contrary,  and  except  where  con- 
trolled by  local  decisions,  may  still  be  taken  as  the  true  date 

iClinev.  Jones,  111  III.  MS;  Ruck-  inger    v.    McConnell,    41     111.     228; 

man  v.  Rucknian,  33  N.  J.  Eq.  259;  Tread  well  v.   Reynolds,  47  Cal.  171; 

Warren    v.    Swett,    31   N.    H.    332;  Harman   v.    Oberdorfer,     33   Gratt. 

Stevens  v.  Hatch,  6 Minn.  64.  (Va.)  497;  Raines  v.  Walker,  77  Va. 

-'Weber  v.    Christen,    121   III.    91,  92;  Ellsworth  v.  R.   R.  Co.  34  N.  J. 

where  a  deed  executed  to  a  bank  was  L.   93;  Wheeler  v,    Single,   62    Wis. 

lianded  by  the  notary  to  one  of  the  380 ;  Robinson  v.  Gould,  26  Iowa,  89. 

directors,  who  was  instructed  by  the  ••  Whitnum  v.  Henneberry,  73  III. 

grantor  that  the  deed  was  not  to  be  109. 

delivered  to  the  bank  until  certain  *  Tread  well  v.    Reynolds,   47    Cal. 

disputes  between  grantee  and  grantor  171;  Eaton  v.  Trowbridge,  38  Mich, 

were  settled.   //eW,  that  there  was  no  451. 

delivery.     Healdsburg  v.   Bailbachi,  **Fontaine  v.  Savings  Institution,  57 

65  Cal.  327.  Mo.  553;  Brolasky  v.  Furey,  12  Phil. 

'Billings    V.    Stark,    15    Fla.    297;  (Pa.)  428;  Johnson  v.  Moore,  28  Mich. 

Meach  v.  Fowler,  14  Ark.  29;  Dein-  3;  Henry  v.  Bradsbaw,  20  Iowa,  26S. 


504  CONVEYANCE. 

of  delivery,  and  not  the  date  of  acknowledgment,  which,  as  a 
matter  of  convenience,  may  well  have  been  made  afterwards.* 
An  acknowledgment  subsequent  to  the  date  of  the  deed  is  not 
inconsistent  with  the  theory  of  a  prior  delivery,^  for  it  may 
often  happen  that  a  deed  is  delivered  and  accepted  with  in- 
tent to  have  it  acknowledged  at  some  future  time;'  and  in  one 
instance  a  court  has  gone  so  far  as  to  say  that  a  subsequent 
acknowledgment  is  of  itself  evidence  of  a  prior  delivery.* 

§  5.  Presumption  from  recordinj^.  The  vital  principle  of 
delivery  is  the  reciprocal  intention  to  give  and  to  receive; 
hence,  as  has  been  shown,  actual  manual  delivery  is  not  essen- 
tial to  a  valid  legal  act,  and  circumstances  which  tend  to  show 
this  intention  may  be  received  as  evidence  of  the  fact.  For 
this  reason  the  registry  of  a  deed  by  the  grantor  is  entitled  to 
great  consideration,  and  may,  under  favorable  circumstances, 
or  in  the  absence  of  opposing  evidence,  justify  the  presumption 
of  a  delivery.^  The  presumption  is  not  conclusive,  however, 
and  may  be  repelled  by  any  inconsistent  facts,  as  where  the 
grantee  had  no  knowledge  of  the  existence  of  the  deed,  and 
the  property  which  it  purported  to  convey  alwaj^s  remained 
in  the  possession  and  under  the  control  of  the  grantor;"  yet, 
ordinarily,  the  recording  of  the  instrument  not  only  affords 
2?rima  facie  evidence  of  delivery,  but,  when  properly  executed 
and  acknowledged,  raises  a  legal  presumption  of  that  fact  ;^ 

1  People  V.  Snyder,  41  N.  Y.  402;  S.)  636;  Himes  v.  Keighblinger,  14 
Hardin  v.  Osborne,  60  111.  93;  Bil-  111.  4G9;  Burkholder  v.  Cased,  47 
lings  V.  Stark,  15  Fla.  297.  Ind.  418;  Kille  v.  Ege,  79  Pa.  St.  15 

2  Raines    v.    Walker,    77  Va.    92;  Counard  v.    Colgan,    55  Iowa,   538 
Clark  V.  Akers,  16  Kan.  166.  Elsberry  v.    Boykin,    65    Ala.    336 

3  Harmon  v.  Oberdorfer,  33  Gratt.  Moore  v.  Giles,  40  Conn.  570;  Rowell 
(Va.)502.  V.  Hayden,  40  Mo.  582;  Wellborn  v. 

4  Ford  V.  Gregorj',  10  B.  Mon.  (Ky.)  Weaver,  17  Ga.  267;  Bullitt  v.  Tay- 
180.     The  fact  of  delivery  is  usually  lor,  34  Miss.  708. 

mentioned  in  the  attestation  of  wit-  ^Younge  v.  Guilbeau,  3  Wall.  (U. 

nesses,  but  is  not  alluded  to  in  the  S.)  636;  Wiggins  v.  Lusk,  12  111.  132 

certificate  of  the  officer  who  takes  Leppack  v.  Union  Bank,  32  Md.  136 

the    acknowledgment;    yet    as    the  Knolls  v.  Barnhart,  71   N.    Y.  474 

parties    acknowledge     "execution,"  Jefferson,  etc.  Assoc,  v.  Heil,  81  Ky. 

and  as  delivery  may  properly  be  held  513. 

to  be  a  part  of  the  execution,  and  ^ Kille  v.  Ege,  79  Pa.  St.  15;  Alex- 
necessary  to  its  validity,  the  reason  ander  v.  Alexander,  71  Ala.  295;  but 
of  the  last  citation  may  be  seen.  see  Boyd  v.  Slayback,  63  Cal.  493. 
ftYounge  v.  Guilbeau,  3  Wall.  (U. 


EXECUTION.  505 

and  yeiioally  a  delivery  will  bo  presuiiied,  in  the  absence  of 
direct  evidence  of  the  fact,  from  concurrent  acts  of  the  parties 
recognizing'  a  transfer  of  title.' 

The  record  of  a  deed  not  only  indicates  delivery,  but,  where 
to  the  "grantee's  advantage,  an  acceptance  as  well;^  and  where 
the  grantor  in  a  deed  not  delivered  causes  the  same  to  be  re- 
corded, this  will  constitute  a  suflicient  delivery  to  enable  the 
grantee  to  hold  the  land  as  against  the  grantor.^  ]3ut  while 
the  recording  of  a  deed  may  alTord  at  Icimt  jj/'i//ia  facte  evi- 
dence of  delivei'y  and  acceptance,  this  must  be  understood  as 
applying  only  to  a  deed  simply  conveying  the  premises,  and 
not  to  one  which  imposes  an  obligation  on  the  grantee  or  cre- 
ates an  assumption  on  his  part  in  regard  to  pro-existing  incum- 
brances.^ 

As  before  remarked,  however,  the  recording  of  a  deed  raises 
no  conclusive  presumption;"  and  where  a  grantor  has,  without 
the  kno\vledgo  of  the  grantee,  caused  a  deed  to  be  recorded, 
which  afterwards  has  been  returned  to  him  and  by  him  re- 
tained, the  question  as  to  whether,  as  a  matter  of  law,  there 
has  been  a  delivery,  is  one  which  it  seems  has  puzzled  courts 
to  decide.'*  The  voluntary  record  of  a  deed,  absolute  in  form 
and  beneficial  to  the  grantee,  is  ordinarily  a  good  delivery; 
yet,  as  delivery  is  essentially  a  question  of  intent,  and  as  a  de- 
livery without  an  intent  to  deliver  is  no  delivery  in  law,^  the 
embarrassment  of  the  question  is  manifest.® 

'Tims,  wliere  a  deed  had  been  ex-  •■> JefTeison,  etc.  Assoc,  v.  Heil,  81 

edited    aud    recorded    without    the  Ky.  513. 

knowledge  of  the  grantee,  who  sub-  ^ See  Vaughn  v.  Goodman,  94  Ind. 

setiuently  executed  a  conveyance  to  191;  Alexander  v.  Alexander,  71  Ala. 

a  third   party,   this    recognition   by  29."). 

both  parties  of  the  transfer  of  the  '^  Jordan  v.  Davis.  108  111.  336. 

title  would  be  sufficient  evidence  that  ^a.,  for  the  purpose  of  protecting 

at  the  time  a  delivery  of  the  deed  Idmself  against  judgments,  conveyed 

had   been   maile.     Gould   v.  Day,    4  land   througli  a  third  person   to  his 

Otto  (U.  S.),  405.  wife.     A.  caused  the  deeds  to  be  re- 

■-i  Metcalfe  V.  Brandon,  CO  Miss.  C85;  corded  and  kept  them  himself  until 

Masterson  v.  Cheek,  23  111.  73;  Cecil  he  died.    Held,  in  a  suit  betsveen  A.'s 

V.  Beaver,  28  Iowa,  241.  wife  and  A.'s  children,  that  a  deliv- 

'Kerr  v.  Birnie,  25  Ark.  225;  Dale  ery  of  the  deed  to  the  wife  did  uot 

v.  Lincoln,  02  111.  22;  Kingsbury  v.  sufHciently  appear  from  these  facts. 

Burnside,  58  111.  310;  Palmer  v.  Pal-  ]\IcGraw  v.  McGraw,  79  Me.  257.    So, 

mer,  02  Iowa,  470.  also,  in  a  rase  wliere  the  grantor,  for 

^Thomjison  V.  Dearborn,  107  111.  87.  tlie  purpose  of  i)l;R-iiig  his  land  be- 


50G  OONVETANOE. 

The  presumption  of  delivery  of  a  deed  arising  from  its  be- 
ing recorded  is  rebutted  by  proof  that  the  grantee  never  was 
in  possession  nor  claimed  under  the  deed;  that  the  land  was 
valuable  onl)^  for  its  use  and  occupation;  and  that  the  grantor, 
his  heirs  and  representatives  have  remained  in  undisturbed 
possession  for  more  than  the  period  covered  by  the  statute  of 
limitation,  without  recognizing  any  rights  under  the  deed. 
Non-delivery  by  the  grantor,  or  a  reconveyance,  is  then  pre- 
sumed;^ or  it  may  be  presumed  either  that  the  grantee  never 
accepted  the  deed  or  had  relinquished  any  claim  thereunder.'^ 

§  6.  Presumption  from  possession  of  iustrumeut.  Posses- 
sion has  ever  been  regarded  as  one  of  the  strongest  evidences 
of  ownership.  The  principle  is  practically  unlimited  in  its 
application,  and  carries  with  it  as  a  corollary  the  further 
principle  that  such  ownership  had  its  origin  in  a  claim  of  right. 
Acting  upon  this  principle  the  possession  and  production  of  a 
properly-executed  deed  by  the  grantee  therein  named  raises 
a  presumption,  in  the  absence  of  any  controlling  circumstances 
to  the  contrary,  that  the  same  was  legally  delivered ;  ^  and 
only  clear  and  convincing  evidence  can  overcome  this  pre- 
sumption.^ Still  the  question  of  delivery  is  a  question  of  in- 
tent, and  a  delivery  without  the  intent  to  deliver  is  not  a  de- 
livery in  law;'  therefore,  where  it  is  found  as  a  fact  that  a 
deed  was  never  delivered,  it  is  void  although  it  came  into  the 

yond  the  reach  of  his  creditors,  made  v.  Djer,  78  Me.  427,  which  was  a  real 

a  deed  to  his  nephews,  one  of  whom  action  brought  by  the  plaintiff  Me- 

was  an  infant.    Tliere  was  no  man-  lissa  A.,  who  claimed  title  under  a 

ual  delivery,  although  the  nephews,  deed    from    her    deceased    husband 

when  informed   of  the  transaction,  running  to  Mercy  A.,  it  was  TzeZd  that 

assented  thereto;  the  grantor,  how-  the  rule  that  the  production  of  a  deed 

ever,  retained  the  custody  and  con-  by  the  grantee  is  prima  facie  evi- 

trol  of  the  deed.     Held,  that  there  dence  of  its  delivery  was  inapplica- 

was  no  delivery.    Weber  v.  Christen,  ble,  plaintiff  not  appearing  to  be  the 

121  111.  91.  grantee. 

1  Knolls  V.  Barnhart,  71  N.  Y.  474.  *  McCann  v.  Atherton,  106  111.  31; 

^Trafford  v.  Austin,  3  Tenn.  Ch.  Simmons  v.  Simmons,  78  Ala.  365. 

492.  The  presumption  may  be  overcome 

3  Wallace  v.  Berdell,  97  N.  Y.  13;  by  proof  of  fraud,  but  such  proof 

Newlin  v.  Beard,  6  W.  Va.  110 ;  Brit-  nmst  be  clear  and  explicit     Cover  v. 

tain  v.  Work,  13  Neb.  347;  Tunnison  Mauaway,  115  Pa.  St.  338. 

V.  Chamberlin,  88  111.  379;  Butrickv.  5  Jordan    v.    Davis,   108    111.    336; 

Tilton,   141    Mass.    93;   Simmons  v.  Cherry  v.  Herring,  83  Ala,  458. 
Simmons,  78  Ala.  3G5.     In  Andrews 


EXEODTION.  507 

possession  of  the  person  named  therein  as  grantee  and  was  re- 
corded.' Cases  very  frequently  arise  where  the  deed  is  handed 
to  the  grantee  for  inspection,  or  for  some  temporary  purpose, 
where  there  is  no  completion  of  the  transfer  and  no  intention 
of  giving  the  deed  effect,  and  in  such  cases  there  is  no  valid 
delivery.'^ 

§  7.  Presumptions  in  case  of  voluntary  deeds.  It  would 
seem  that  the  law  makes  stronger  [)rcsumptious  in  favor  of 
the  delivery  of  deeds  in  cases  of  voluntary  conveyance  than  in 
ordinary  cases  of  bargain  and  sale,''  and  tlie  authorities  go  far 
to  establish  the  proposition  that  an  instrument  may  be  good 
as  a  voluntary  settlement  even  though  it  be  retained  b}*-  the 
grantor  in  his  possession  until  his  death.*  The  cases  in  this 
respect,  however,  are  generally  attended  with  the  qualification 
that  there  shall  be  no  circumstances  besides  the  mere  fact  of 
retaining  the  instrument  to  show  that  the  executing  party  did 
not  intend  it  to  operate  immediately,  or  to  denote  an  intention 
contrary  to  that  appearing  upon  the  face  of  the  deed.  But 
notwithstanding  the  deed  purports  to  be  an  absolute  convey- 
ance of  the  grantor's  entire  interest  in  presently  if  it  neverthe- 
less a])pears  that  such  deed  was  not  intended  to  be  absolute, 
but  to  be  qualified  in  effect;^  or  if  it  appears  that  it  was  not 
intended  to  convey  the  grantor's  whole  interest,  but  to  leave 
in  him  a  life  estate  or  some  other  interest;  or  that  it  was  not 
intended  to  operate  presently,  but  only  upon  the  grantor's 
death,®  or  the  doing  of  some  particular  act  or  happening  of  a 
certain  contingency  —  then  the  presumption  ceases,  and  the 
fact  that  the  grantor  has  kept  the  deed  in  his  own  possession 
becomes  indicative  of  non-delivery.^ 

§  8.  No  presumption  from  execution.  Simply  executing 
and  acknowledging  a  deed  pursuant  to  previous  agreement, 
while  it  may  be  evidence  which,  when  taken   in  connection 

»  Dwinoll  V.  Bliss,  58  Vt.  353.  Wend.  (N.  Y.)  545;  Otis  v.  Beck  with, 

2  Gilbert  v.  Ins.  Co.,  23  Wend.  (N.  49  111.  121. 

Y.)  43.  5  Jones  v.  Loveless.  99  Ind.  317. 

•  Reed     V.    Douthit,    G2    111.    348;  « Williams  v.  Scliatz,  42  Ohio  St. 

Walker  v.  Walker,  42  111.  311;  Sou-  47;  Davis   v.  Cross,  14  Lea  (Tenn.), 

verbyo  v.  Arden,  1  Johns.  Ch.  (N.  Y.)  637. 

240.  "Cline  v.  Jones,  111  111.  563;  Good- 

^  Buun  V.  Winthrop,  1  Johns.  Ch.  lott  v.  Kelly,  74  Ala.  213. 
^N.  Y.)  329;  Scrugham  v.  Wood,   15 


508  CONVEYANCE. 

with  other  circumstances,  may  tend  to  disclose  intent,  will  not 
of  itself  amount  to  a  deliver}^^  and  no  legal  presumption  will 
arise  from  such  acts.-  A  party  claiming  under  a  deed  must 
always  prove  its  delivery;  and  this  is  not  accomplished  b}'-  a 
simple  showing  of  the  fact  of  execution,  nor  even  by  such  fact 
and  the  further  circumstance  that  it  has  passed  from  the 
grantor's  hands;  for  a  delivery  to  a  third  person,  or  even  to  the 
grantee,  may  be  made  for  other  purposes  than  to  give  the 
deed  effect,  and  the  mere  fact  that  it  is  put  into  their  hands, 
if  not  as  a  completed  transfer,  will  not  bind  the  grantor.^ 

§  9.  Snliicicucy  of  proof  of  delivery.  To  constitute  the  act 
of  a  grantor  a  deliver}^  of  a  deed,  it  must  be  such  as  to  mani- 
fest an  intention  on  his  part  to  make  a  deliverv,  and  to  part 
with  the  possession  and  control  of  the  instrument.  Yet,  as 
previously  remarked,  this  intention  may  be  gathered  from 
acts  or  words,  or  from  both;  and  it  is  not  essential  that  the 
deed  be  delivered  to  the  grantee,  or  indeed  that  it  ever  actu- 
ally pass  from  the  hands  of  the  grantor.  Any  competent  tes- 
timony which  clearly  and  unmistakably  tends  to  show  the 
essential  facts  will,  in  the  absence  of  any  evidence  contradict- 
ing or  impeaching  it,  or  of  any  circumstances  which  may  throw 
suspicion  upon  it,  be  sufficient  to  establish  a  valid  delivery.* 
But  the  testimony  should  be  of  such  a  character  as  to  leave 
no  doubt  as  to  the  grantor's  intention  that  the  deed  should  at 
the  time  become  operative  and  effectual.     Upon  this  point  all 

1  Turner  v.  Carpenter,  83  Mo.  333.  alter  it  at  will.     Complainant  gave 

2  Boyd  V,  Slayback,  63  Cal.  493.  defendant  an   order  on  N.    for  the 

3  Jackson  v.  Phipps,  12  Johns.  (N.  deed  in  order  to  show  it  to  defend- 
Y.)  418;  Prutsman  v.  Baker,  30  Wis.  ant,  and  to  induce  him  to  secure  cer- 
644.  The  deposit  of  a  properly-exe-  tain  payments  to  complainant's  other 
cuted  deed  with  a  public  officer,  but  heirs  —  the  deed,  in  such  case,  to  be 
not  for  record,  and  with  no  purpose  operative  at  complainant's  death, 
of  giving  the  deed  effect,  was  held  Defendant  took  the  deed  and  put  it 
no  delivery.  Austin  v.  Eegister,  41  on  record.  Held,  that  there  was  no 
Mich.  723.  Complainant  made  a  delivery  of  it,  and  complainant  could 
deed  of  his  land,  including  his  home-  rescind  it  and  have  it  canceled  of 
stead,  to  defendant,  with  intent  to  record.  Pennington  v,  Pennington 
have  the  same  delivered  after    his  (Mich.),  42  N.  W.  Rep.  985. 

death,  and  gave  it  to  one  N.  to  hold       *  Otis  v.  Spencer,  102  111.  622 ;  Stin- 

subject  to  complainant's  order.      It  son  v.  Anderson,  96  111.   373:  Cover 

was  understood  between  complainant  v.  Manaway,   115   Pa.  St.    338;   Mc- 

and  tiie  person  who  drew  the  deed  Laughlin  v.  Manigle,  63  Tex.  553. 
that    complainant  could  rescind  or 


EXECUTION.  509 

the  questions  relative  to  delivery  turn,  and  the  proof  must  sat- 
isfactorily establish  this  fact  before  the  deed  can  be  regarded 
as  a  conveyance.' 

§  10.  Delivery  to  third  person.  It  is  not  necessary,  to  ef- 
fect a  valid  delivery,  that  the  instrument  should  pass  from  the 
hand  of  the  grantor  to  the  grantee,  for  the  law  only  requires 
some  act  that  shall  preclude  a  revocation,  and  hence  such  de- 
livery may  be  made  to  a  third  party  authorized  to  receive  it,- 
or  even  to  a  stranger  for  the  use  of  the  grantee,'  provided,  of 
course,  there  is  a  subsequent  ratification;^  and  generally  a  de- 
livery to  an}''  third  |)erson,  intended  to  give  the  deed  effect 
and  to  make  the  conveyance  operative,  is  a  legal  delivery.* 

Out  a  delivery  to  a  third  person  made  for  other  purposes 
than  to  give  the  deed  effect  will  be  inoperative,  and  the  mere 
fact  that  it  is  put  into  the  hands  of  such  third  person,  if  not  as  a 
completed  transfer,  will  not  bind  the  grantor."  So,  also,  where 
a  deed  was  intrusted  to  grantors  agent  to  be  delivered  after 
death,  it  was  held  there  could  be  no  continuance  of  agency 
after  death,  and  that  there  was  no  valid  delivery.'     But  such 

1  See  Gorman  v.   Gorman,   98  III.  3  Duer  v.  James.  42  Md.  493 :  Hos- 

361 ;  Benneson  v.  Aiken,  103  111.  284.  ley  v.  Holmes,  27  Mich,  416;  Souver- 

A  grantor  upon  signing  a  deed  put  bye  v,  Arden,    1  Johns.   Ch,  (N.   Y.) 

it  before  the  grantee,  saying,  "  Tliere  240;    McCormick  v.  McCormick,   71 

is  no  go  back  from  that,"  and  the  Iowa,  379. 

witnesses      then     subscribed      their  *  Brown    v.    Brown,   66    Me.    316; 

names.     A  note,  which  was  to  be  the  Fisher  v.  Hall,  41  N.  Y.  423. 

consideration  of  the  deed,   was  not  -^Hosley  v.  Holmes,  27  Midi.  416; 

handed  to  the  grantor,  but  the  two  Owen  v.  Williams,  114  Ind.  179. 

papers  wore  taken  up  by  the  grantee,  ''Jackson  v.  Phipps,  12  Johns.  (X. 

and  the  parties  went  to  a  magistrate,  Y.)  418;  Austin  v.  Register,  41  Mich, 

by  wliom  the  acknowledgment  was  723.  A  deed  in  a  third  person's  hands 

taken  and  certified ;  but  the  grantor  subject  to  the  grantor's  orders  was 

witidield  the  deed  from  the  grantee,  held    not    delivered.      Prutsman    v. 

and  the  grantee  did  not  then  assent  Baker,  30  Wis.  644. 

or  claim  tliat  it  had  previously  been  ■■  Wellborn  v.  Weaver,  17  Ga.  0G7. 

delivered;   and   the   grantor,    in   his  But  see  Foster  v.   Mansfield,  3  Met. 

answer  to  a  bill   in   equity,  denied  (Mass.)  412,  where  it  was /(«■/(/ that  if  a 

that  it  had   been  delivered.      Held,  grantor,  at  the  time  of  his  giving  di- 

that  a  delivery  had  not  been  proved,  rections  for  the  making  of  a  deed,  and 

Mills  V.  Gore,  20  Pick.  (Mass.)  28.  after  the  deed  is  drawn  and  presented 

2Duer  V.  James,  42  Md.  492;  Eck-  to  him,  directs  and  intemls  that  from 

man    v.     Eckman,    55    Pa.    St.    269;  atul  after   its   execution   it   shall   be 

Hatch  v.  Bates,  54  Me.   136;  Hinson  taken  and  retained  by  the  scrivener 

v.  Bailey,  73  Iowa,  544.  until  after  the  grantor's  death,  and 


610  CONVEYANCE. 

rule  must  be  considered  as  having  application  only  where  the 
grantor  assumes  to  still  control  the  deed ;  ^  for  the  cases  are 
numerous  where  deposits  made  with  third  persons  for  trans- 
mittal to  the  grantee  after  the  grantor's  death  have  been  sus- 
tained as  valid  deliveries.^ 

§11.  Delivery  to  t.ake  effect  after  death  of  grantor. 
Closely  connected  with  the  subject  discussed  in  the  preceding 
paragraph  is  the  character  to  be  given  to  instruments  left  with 
a  third  person  to  hold  until  the  death  of  the  grantor  and  then 
to  be  delivered  to  the  grantee.  Notwithstanding  some  of  the 
earlier  decisions  to  the  contrary,  the  current  of  later  authority 
seems  to  establish  the  doctrine  that,  where  the  grantor  reserves 
no  privilege  of  revoking  or  recalling  the  deed,  its  legal  effect 
is  that  of  an  escrow,  which,  upon  the  happening  of  the  con- 
tingency of  death,  relates  back  to  the  first  delivery  and  be- 
comes effective  to  convey  the  grantor's  title. ^ 

The  question  usually  raised  in  matters  of  this  kind  is  one  of 
construction,  the  point  to  be  decided  being  whether  the  instru- 
ment is  to  be  considered  as  a  deed  or  a  will.  It  is  well  estab- 
lished that  neither  the  form  nor  manner  of  execution  of  an 
instrument  will  affect  its  character,  as  this  must  be  determined 
from  its  operation.  If  it  takes  effect  m  presenti it  is  a  deed; 
if,  on  the  other  hand,  it  does  not  become  operative  until  after 
the  death  of  him  who  makes  it,  it  is  a  will,  whatever  be  its 

then  be  delivered  to  the  grantee,  all  him  a  conveyance  of    land   to  the 

of  which  is  afterwards  done,  the  es-  daughter.     The  mother  told  the  jus- 

tate  vests  in   the  grantee  from  the  tice  to  keep  the  deed  until  she  died, 

time  of  the  execution  of  the  deed,  and  then  to  record  it.    Held,  that  the 

See,   also,   Shackeiton  v.  Sebree,  86  deed  should  be  deemed  to  have  been 

III.  616.  delivered  when  signed  and  acknowl- 

1  It  has  been  held  that  if  a  person  edged.  Hinson  v.  Bailey,  73  Iowa, 
executes  a  deed  of  land  and  places  it  544.  See,  also,  Smiley  v.  Smiley,  114 
in  the  hands  of  A.,  with  directions  Ind.  258;  Foster  v.  Mansfield,  3  Met. 
to  keep  it  during  the  grantor's  life,  (Mass.)  412;  Shackeiton  v.  Sebree,  86 
and  on  his  death  to  deliver  it  to  the  111.  616. 

grantee,  A.  holds  it  as  agent  of  the       3  Hockett   v.    Jones,    70  Ind.    227 ; 

grantor    and    not    as   agent  of    the  Stephens    v.    Huss,    54    Pa.   St.    2-0; 

grantee,  and  that  the  grantor  may  re-  Howard   v.    Patrick,    38   Mich.    805; 

voke  it  at  any  time.     Hale  v.  Joslin,  Wall  v.  Wall,  30  Miss.  91;  Thatcher 

134  Mass.  310.  v.    St.    Andrew's  Church,    37  Mioh. 

2  As  where  a  woman  went  with  her  264;  Owen  v.  Williams,  114  Ind.  179; 
daughter  to  a  justice  of  the  peace  Hinson  v.  Bailey,  73  Iowa,  544. 

and  signed  and  acknowledged  before 


EXECUTIOX,  511 

form.  Thus  a  deed,  if  made  with  a  view  to  the  disposition  of 
11  man's  estate  after  his  death,  will  iiuirc  in  law  as  a  devise  or 
will.^  A  deed  must  take  effect  upon  its  execution  or  not  at 
all.^  Again,  a  deed,  when  once  passed,  cannot  be  revoked;  a 
will  remains  ambulatory  to  the  day  of  the  testator's  death. 
Applying  these  principles,  the  character  of  instruments  under 
consideration  can  soon  be  determined.  If  the  delivery  to  the 
depositary  be  made  with  the  absolute  and  final  determination 
that  it  shall  become  final  upon  the  death  of  the  grantor,  he 
surrendering  all  power  or  control  over  the  instrument,  effect 
should  be  given  to  it  as  a  deed  of  conveyance.^  Hut  a  party 
cannot  make  a  deed  for  land  and  retain  its  custody,  and  have 
it  operate  as  a  conveyance  only  after  his  death  ;^  nor  can  he 
effect  such  a  result  by  simply  depositing  the  deed  with  a  third 
person  if  he  continues  to  have  the  right  to  recall  it.'^ 

The  lodgment  of  a  deed,  properly  executed  and  acknowl- 
edged by  the  grantor,  in  a  place  to  which  the  grantee  has  ac- 
cess, and  from  which  he  can  without  hindrance  transfer  it  to 
his  own  possession,  with  intent  on  the  part  of  the  grantor  that 
the  grantee  may  after  his  death  take  it  and  have  it  recorded, 
does  not  constitute  a  delivery."  Upon  this  point,  however,  the 
authorities  are  somewhat  discordant  —  not  as  to  the  law,  but  in 
the  ai)plication  of  the  law  to  particular  facts;  and  numerous 
decisions  ai)])ear  to  militate  in  some  measure  against  the  prop- 
osition last  stated." 


1  Wellborn  v.  Weaver,  17  Ga.  267.  sickness  within  a  few  days,  and  C. 
2Cline  V.  Jones,  111  III.  563.  then  handed  the  deed  to  B.     Held, 
•*  Putnam  v.  Baker,   30  Wis.    644;  that  there  was  no  deliver^-.     Will- 
Brown  V.  Brown,  66  Me.  316;  Ball  v.  iaras  v,  Schatz,  43  Ohio  St.  48. 
Foreman,  37  Ohio  St.  139;  Baker  v,  6  Scott  v.  Scott,  95  Mo.  300. 
Haskell,  47  N.  H.  479.  ''  As  where  a  fatiier  duly  executes 
•  Cline  V.  Jones,  111  111.  563.  a  deed  to  his  son  with  intent  that 
•''  This  is  so  even  though  the  grantor  his  son  should  assume  control  of  his 
may  not  have  intended  to  retain  such  property  after  his  deatii,  but  fearing 
right  and  does  not  exercise  it.     Will-  that  his  son's  wife  might  dispossess 
iains  v.  Schatz,  42  Ohio  St.  47.     A.,  him  if  she  knew  of  the  conveyance 
while  sick,  executed  a  deed  of  gift  lie  placed  the  deed  in  his  sou's  trunk, 
to  his  son  B.  and  gave  it  to  C,  say-  whereit  was  found  after  the  grantor's 
ing,    "Take  this  deed  and  keep  it.  death.     Held,  that  there  was  a  de- 
If  I  get  well  I  will  call  for  it.     If  I  livery.     Hill  v.  Hill,  119  111.  242. 
don't,  give  it  to  B."     A.  died  of  that 


512  CONVEYANCE. 

§  1 3.  Deed  retained  by  grantor.  The  fact  that  the  grantor 
retains  the  custody  of  the  deed  does  not  in  any  way  affect  the 
operation  of  a  former  deliver}';  and  there  are  numerous  cases 
where  deeds  found  to  have  been  in  the  custody  of  the  grantor 
at  his  death  have  been  held  valid  on  proof,  or  facts  amount- 
ing to  proof,  that  he  had  made  an  effectual  delivery,  and 
become  a  mere  custodian  of  the  deed  thereafter.^  isov  is  it 
necessary  that  the  grantee  or  his  agent  should  be  present  at 
the  execution  of  a  deed,  or  himself  actually  manually  receive 
the  instrument,  to  render  it  operative;  but  it  should  be  placed 
within  the  power  of  some  other  person  for  the  grantee's  use, 
or  the  grantor  should  clearl\'  indicate  it  to  be  his  intention  that 
the  instrument  should  take  effect  as  a  conveyance  of  the  prop- 
erty, so  that  if  he  retain  the  possession  of  the  deed  it  should 
appear  to  be  merely  as  bailee  of  the  grantee;  and  in  every  in- 
stance where  a  deed  is  retained  in  the  grantor's  custody  there 
must  be  unequivocal  proof  of  a  legal  delivery  intended  to  be 
operative.- 

A  deed  duly  executed,  but  retained  b}'  the  grantor  until  the 
land  should  be  paid  for,  and  he  dying  before  payment,  was 
held  inoperative;^  and  in  like  manner  a  deed  made  by  the 
grantor,  and  retained  by  him  with  the  distinct  understanding 
that  it  would  become  operative  at  his  death,  and  found  among 
his  papers  with  a  will  which  it  was  designed  to  alter,  was  held 
void  for  want  of  delivery  during  life.* 

iReed  v.  Doutbit,  63  111.  348;  Sou-  conveyance  was  wholly  inoperative 

verl)ye  v.  Arden,  1  Johns.  Ch.  (N.  Y.)  to  pass   the  title,    and  no  delivery 

240.  thereof  to  the  grantee  could  be  pre- 

-  Fisher  v.  Hall,  41  N.  Y.  416.  Thus,  sumed  or  interred  from  these  facts, 

where  a  conveyance  of  real  estate  lias  Ibid. 

been  subscribed  and   sealed  by  the  *  Jackson  v.  Dunlap,  1  Johns,  Cas. 

grantor,  attested  by  witnesses  under  (N.  Y.)  114. 

a  clause    stating   that  it  had  been  *  Still  well  v.  Hubbard,  20  Wend, 

sealed  and   delivered  in  their  pres-  (N.  Y.)44;  and  see  Fain  v.  Smith,  14 

ence,  but  the  grantee  was  not  then  Oreg.  82.    A  father,  a  year  before  his 

present,  and  remained   ignorant  of  death,  executed  and  acknowledged  a 

the  existence  of  the  deed  until  long  deed  to  his  son.     He  did  not  deliver 

after  the  death  of  the  grantor,  and  it,  but  directed  his  daughter  to  do  so 

the  grantor  continually  remained  in  after  his  death,  upon  the  execution 

the  possession  of  the  premises  until  of  a  note  b}^  the  son.    Held,  that  the 

his  death,  when  the  deed  was  found  deed  was  inoperative.     Taft  v.  Taft, 

among   his  papers,  held,  that  such  59  Mich.  185. 


EXECUTION.  513 

Where  the  grantor  has  by  will  or  otherwise  asserted  that 
an  actual  delivery  has  taken  place,  such  deeds  have  been  main- 
tained, as  they  have  been  in  some  cases  where  there  was  a 
provioiisly-recognizud  obligation  to  make  them  and  they  pur- 
port to  have  been  made  in  execution  of  it;  but  the  retention 
of  control  of  title  has  always  been  held  inconsistent  with  the 
validity  of  a  deed  held  in  custody.  It  would  seem,  therefore, 
that  any  deed  which  is  to  be  maintained  after  death  must  have 
been  made  operative  by  some  valid  delivery  by  the  grantor 
during  life;  and  while  a  disposition  has  been  shown  in  some 
cases  to  raise  presumptions  on  equitable  showings,  there  is  no 
foundation  for  any  rule  that  will  sustain  an  undelivered  deed; 
and  there  is  no  room  for  presumption  when  the  facts  appear.' 

§  13.  When  grantor  will  be  estopiKMl.  The  intention  of 
the  parties  is  in  all  cases  the  controlling  element  in  determin- 
ing the  operation  and  effect  of  a  delivery.  If  the  grantor  in- 
tended a  present  delivery,  and  the  grantee  so  understood  and 
intended  that  there  should  bo  an  acceptance,  a  formal  delivery 
to  the  grantee  in  person  would  not  be  necessary  to  determine 
the  character  of  the  transaction  or  fix  the  rights  of  the  par- 
ties so  far  as  they  may  be  dependent  on  that  fact.  Thus, 
where  the  grantor  induces  the  grantee  to  believe  that  a  deed 
has  been  executed  which  makes  him  the  owner  of  certain 
premises,  and  permits  the  grantee  to  act  under  this  belief  in 
making  valuable  improvements  on  the  land,  he  will  be  estopped 
from  alleging  that  the  deed  is  inoperative  for  want  of  formal 
deli  very. - 

§  14.  Revocation  and  redelivery.  Properly  speaking 
there  can  be  no  revocation  of  a  deed  which,  being  duly  exe- 
cuted, has  been  actually  or  constructively  delivered.  I3y  that 
act  the  title  has  i)assed  beyond  the  grantor's  control;  and 
though  he  may  still  avail  himself  of  the  remedies  which  the 
law  all'ords  either  for  rcfoinuition,  cancellation  or  rescission, 
the  power  of  revocation  no  longer  exists.  The  fact  that  after 
delivery  the  deed  has  been  returned  to  the  grantor  and  by 
him  retained  neither  negatives  nor  disproves  its  previous  de- 
livery; nor  will  it  destroy  or  in  any  way  affect  the  title  of  the 
grantee  as  between  the  parties;  ^  nor  will  the  further  fact  that 

1  Talt  V.  Taft,  59  Mich.  185 ;  Fain  v.        "^  Walkt-r  v.  Walker,  43  III.  311. 
Smitli,  1-1  Oreg.  82.  3  Thomas    v.    (Jrocsbeck,   40    Tex. 

3)3 


514 


CONVEYANCE. 


it  has  been  canceled  or  destroyed  while  thus  in  the  grantor's 
possession  serve  to  divest  title  on  the  one  hand  or  re-invest  it 
on  the  other,^  notwithstanding  such  may  have  been  the  inten- 
tion of  the  parties.^  The  mere  act  of  destroying  the  evidence 
of  title  can  have  no  effect  upon  the  ti.tle  itself;  and  this  being 
vested  in  the  grantee,  he  will  continue  to  hold  it  as  against  the 
grantor.^  The  grantee,  however,  although  possessing  the  es- 
tate, having  voluntarily  and  without  fraud  or  mistake  de- 
stroyed the  evidences  of  his  legal  ownership,  would,  in  case 
of  an  unrecorded  deed,  be  left  entirely  without  means  by 
which  he  could  afterwards  establish  or  prove  his  title ;^  and 
in  such  case  the  title,  in  a  very  restricted  sense,  ma}'^  be  said 
to  have  reverted,  because  the  grantee  is  estopped  to  assert  or 
prove  it.^  Again,  while  the  redelivery  or  destruction  of  the  deed 
can  have  no  effect  as  a  transfer  of  the  legal  title,  it  may 
under  some  circumstances  vest  an  equitable  title,"  or  at  least 
])reclude  the  grantee  from  asserting  the  same;  and  as  in  equity 
such  a  title  may  be  set  up  against  a  legal  title,  courts  in  a 
proper  case  will  not  interfere  to  divest  them.'' 


530;  Hart  v.  Rust,  46  Tex.  556;  Wal- 
lace V.  Berdell,  97  N.  Y.  13;  Burk- 
holder  v.  Cased,  47  Ind.  418 ;  Albert 
V.  Burbank,  25  N.  J.  Eq.  404;  Kim- 
ball V.  Grey,  47  Ala.  230. 

1  Warren  v.  Tobey,  32  Mich.  45; 
Reavis  v,  Reavis,  50  Ala.  60 ;  Rogers 
V.  Rogers,  53  Wis.  36;  Jackson  v. 
Gould,  7  Wend.  (N.  Y.)  364;  Botsford 
V.  Morehouse,  4  Conn.  550;  Marshall 
V.  Fisk,  6  Mass.  24;  Tibeau  v.  Tibeau, 
19  Mo.  78;  Kearsing  v.  Kilian,  18 
Cal.  491;  Patterson  v.  Yeaton,  47 
Me.  308;  Jordan  v.  Jordan,  14  Ga. 
145. 

2  Warren  v.  Tobey,  32  Mich.  45; 
Reavis  v.  Reavis,  50  Ala.  60;  Chess- 
man V.  Whitteinore,  23  Pick.  (Mass.) 
231 ;  but  see  Sawyer  v.  Peters,  50 
N.  H.  143;  Howard  v.  Huffman,  3 
Head  (Tenn.),  564.  A  deed  is  but  the 
evidence  of  a  conveyance ;  and  the 
destruction  of  a  deed,  while  it  affects 
the  evidence  of  a  conveyance,  does 
not  vacate  or  affect  the  conveyance 


itself  or  re-invest  title  in  the  grantor. 
Erwin  v.  Hall,  18  111.  App.  315. 

3  Parker  v.  Kane,  4  Wis.  1 ;  Hentch 
V.  Hentch,  9  Mass.  307;  Jackson  v. 
Page,  4  Wend.  (N.  Y.)  417;  Jeffers  v. 
Philo,  35  Ohio  St.  173. 

*  Parker  v.  Kane,  4  Wis.  1 ;  Dukes 
V.  Spangler,  35  Ohio  St.  119. 

5  Howard  v.  Huffman,  3  Head 
(Tenn.),  562;  Speer  v.  Speer,  7  Ind. 
178;  Dukes  v.  Spangler,  35  Oliio  St. 
119;  Farrar  v.  Farrar,  4  N.  H.  191; 
Trull  V.  Skinner,  17  Pick.  (Mass.) 
213. 

<>  Commonwealth  v.  Dudley,  10 
Mass.  402;  Patterson  v.  Yeaton,  47 
Me.  308;  Lawrence  v.  Stratton,  6 
Cush.  (Mass.)  165.  In  the  foregoing 
cases,  however,  where  the  grantee 
had  surrendered  his  deed  to  the 
grantor,  the  property  was  then  sold 
to  a  third  person  without  notice. 

7  As  where  a  husband,  after  hav- 
ing received  a  deed  for  a  lot  from  his 
wife's  parents,  surrendered  the  deed 


EXEOCTION.  515 

It  would  seem,  liowcvcr,  that  where  the  grantee  in  posses- 
sion under  a  deed  duly  executed,  but  not  recorded,  sells  the 
land  to  a  third  person,  cancels  his  deed,  and  requests  his 
•jjrantor  to  make  a  now  conveyance  to  such  third  person,  which 
he  does,  the  title  by  such  new  conveyance  is  valid.' 

§  15.  Delivery  in  escrow.  "Where  a  deed  is  delivered  to  a 
stranf^er,  to  be  by  him  delivered  to  the  grantee  upon  the  per- 
formance of  certain  conditions,  it  is  said  to  be  in  escrow.  But 
as  the  first  or  preliminary  delivery  is  simply  a  device  for  the 
greater  convenience  of  the  grantor,  it  has  no  operation  in  law, 
and  the  escrow  takes  effect  as  a  deed  only  from  the  date  of 
the  second  delivery ;  that  is,  from  the  date  of  its  delivery  to 
the  grantee  or  some  person  in  his  behalf.'  Prior  to  this  event 
the  estate,  with  all  its  incidents,  remains  in  the  grantor,'  and 
in  case  of  his  death  during  the  intervening  period  descends  to 
his  heirs,^  subject,  of  course,  to  the  equitable  rights  of  the  pur- 
chaser.'* But  while  delivery  is  essential  to  render  the  deed 
effectual  at  law,  it  is  in  fact  the  performance  of  the  condi- 
tions that  imparts  life  and  validity  ;^  and  for  this  reason  equity 
regards  the  title  as  vesting  in  the  grantee  whenever  this  has 
been  done. 


to  them  for  the  purpose  of  having  Smith  v.  Bank,  32  Yt.  341;  Peter  v. 

them  convey  the  lot  to  his  wife,  and  "Wright,  6  Ind.  183;  Rcsor  v.  R'y  Co. 

his  deed   was  destroyed,    it  having  17  Ohio  St.  139;  Everts  v.  Agnes,  4 

never  been  recorded,  and  a  new  one  Wis.  343;  Cogger  v.  Lansing,  43  N. 

made  to  his   wife,  in  whicli  he  ac-  Y.  550. 

quiesced  for  seventeen  years  before  3  Jackson  v.  Rowland.  6  Wend.  (N. 

suing  for  a  deed,  held,  that  the  sur-  Y.)  C66;  Cogger  v.  Lansing,  43  N.  Y. 

render  of  liis  deed   by  the   Inisband  550. 

and  the  making  of  a  new  one  to  his  '•Teneick  v.  Flagg,  29  N.  J.  L.  25; 

wife  did  not  divest  liis  legal  title,  but  Cogger  v.  Lansing,  43  N.  Y.  550. 

p;ssedan  equitable  title  to  his  wife  ^But  only  in  the  event  that  the 

which  a  court  of  equity  would  pi-o-  contract  can    be  shown   by  a  valid 

feet.     Sanford  v.  Finkle.  112  III.  146;  agreement  —  i.e.,  an  agreement  sufti- 

but  in  this  case  the  surrender  by  the  cient  to  take  the  transaction  out  of 

husband  and  re-issue  to  the  wife  was  the  operation  of  the  statute  of  frauds, 

regarded  as  in  the  nature  of  an  equi-  Cogger  v.  Lansing,  43  N.  Y.  550. 

table  gift  amounting  to  a  settlement.  ""Ilinman  v.  Booth,  21   Wend.  (N. 

'Commonwealth     v.     Dudley.    10  Y.)  207;  Groves  v.  Tucker,  18  Miss. 

Mass.    403;    llolbrook    v.    Tinell,    9  9;  Laubat  v.  Kipp,  9  Fla.  60;  State 

Pick.  (Mass.)  105.  Bank    v.    Evans,    15  N.    J.    L.    155; 

2  Dyson  v.  Bradshaw,  23  Cal.  528;  Smith  v.  Bank,  32  Vt.  341. 


516  CONVEYANCE. 

It  will  be  seen,  therefore,  that,  unlike  the  ordinary  case  of 
delivery  by  grantor  to  grantee,  no  title  passes  until  the  condi- 
tions have  been  performed  and  the  deed  delivered  to  the  pur- 
chaser, the  second  delivery  deriving  all  its  force  from  the  first, 
of  which  it  is  the  full  consummation  and  execution.     The  es- 
sential requisite,  however,  is  the  performance  of  the  conditions; 
and  if,  without  such  performance,  the  depositary  delivers  the 
escrow  to  the  grantee  except  by  direction  of  the  grantor,  the 
deed  will,  as  between  the  parties,  be  inoperative  and  void.   The 
fact  that  the  grantee  takes  it  in  good  faith  does  not  alter  the 
rule;  for  it  is  fundamental  that  the  delivery  must  be  with 
the  assent  of  the  grantor,  and  this  is  never  presumed  while 
the  conditions  remain  unperformed.^     With  respect  to  third 
parties  the  decisions  are  not  in  complete  harmon}'.     Undoubt- 
edly a  purchaser  from  a  grantee  in  escrow  who  had  knowledge 
of  the  facts  attending  the  deposit  and  delivery  would  take  no 
better  title  than  his  grantor,  and  the  estate  in  his  hands  would 
be  subject  to  any  infirmity  originally  attaching  to  it.     Hence, 
if  the  deliver}''  by  the  depositary  had  been  against  the  assent 
of  the  grantor  in  escrow,  or  if  it  had  been  procured  by  fraud 
or  before  the  proper  conditions  had  been  performed,  and  the 
second  purchaser  had  knowledge  of  these  facts,  he  would  ac- 
quire no  title  by  the  sale."     But  with  respect  to  an  innocent 
purchaser  who,  in  good  faith  and  for  value,  acquires  title  from 
a  fraudulent  grantee,  a  different  rule  should,  and  it  seems  does, 
prevail.     There  are  cases  which  strenuously  hold  that  in  every 
instance  where  by  improper  means  the  grantee  in  escrow  has 
obtained  possession  of  the  deed,  and  subsequently  conveys  to 
third  parties,  the  superior  equity  is  with  the  original  grantor, 
who  is  considered  as  never  having  parted  with  the  title,  and 
the  good  or  bad  faith  of  the  purchaser  is  immaterial;  *  but  the 
later  and  better  rule  would  seem  to  be  that  the  general  prin- 
ciples which  underlie  the  law  of  notice  are  to  be  given  full 
efifect  in  this  as  in  other  cases,  and  that  good  faith,  want  of 
knowledge  and  parting  with  value  will  confer  upon  the  pur- 

•  Everts  v.  Agiies,  4  Wis.  343 ;  Dag-       ^  Everts  v,  Agnes,  6  Wis.  453  (sec- 
gett  V.  Daggett,  143  Mass.  516;  White   ond  hearing). 

V.  Core,  20  W.  Va.  272.  3  Tisher  v.  Beckwith,  30  Wis.  57; 

Everts  v.  Agnes,  6  Wis.  453. 


EXECUTION.  ^17 

chaser  the  same  rights  and  afford  to  him  the  same  i)rotection 
that  he  would  receive  in  any  other  species  of  fraudulent  con- 
veyance.^ 

If  a  deed  is  deposited  in  escrow  and  the  grantee  dies  the  sub- 
sequent performance  of  the  condition  vests  title  in   his  heirs.^ 

The  vital  principle  of  an  escrow  is  the  preliminary  delivery 
to  a  stranger,  and  a  delivery  in  escrow  or  upon  conditions 
cannot  be  made  to  the  grantee  himself.  Such  a  delivery  is 
absolute;  and  though  it  be  contrary  to  intent  the  deed  takes 
effect  presently  iis  the  deed  of  the  grantor,  discharged  of  the 
conditions  upon  which  it  was  made,  which,  so  far  as  the  vest- 
ing of  title  is  concerned,  are  thereby  rendered  nugatory.' 
These  are  the  general  and  well-recognized  principles  governing 
this  branch  of  the  law,  yet  they  are  not  to  be  taken  without 
qualification;  for  if  the  conditions  are  written  in  or  upon  the 
deed,''  or  if  the  deed  be  simply  delivered  to  the  grantee  to 
await  his  determination  to  accept  or  not,*^  or  is  handed  to  the 
grantee  for  inspection,  or  is  received  or  obtained  by  the 
grantee  in  any  manner  inconsistent  with  the  general  rules  of 
law  defining  and  fixing  the  method  of  the  delivery  of  deeds, 
then  the  foregoing  rule  would  not  apply.  If,  however,  a  de- 
livery was  intended,  then  irrespective  of  any  other  intentions 
the  deed  becomes  absolute.® 

1  A  grantor  delivered  a  deed  in  es-  <  Berry  v.  Anderson,  22  Ind.  39; 
crow.  The  grantee  procured  it  to  Wendlinger  v.  Smitli,  75  Va.  309. 
show  a  bank,  and,  instead  of  return-  5  Brackett  v.  Barney,  28  N.  Y.  341, 
ing  it,  placed  it  on  record  without  <>As  whore  the  grantor  placed  a 
the  grantor's  knowledge  or  consent,  deed  in  the  hands  of  the  grantee  upon 
and  without  having  performed  the  the  condition  that  it  was  to  take  ef- 
conditions  of  the  escrow.  On  the  feet  only  in  case  the  grantor  re- 
faith  of  the  record  the  bank  took  a  niained  in  Texas,  and  that  if  he 
mortgage  from  the  grantee.  Held,  returned  it  was  to  be  delivered  back 
that  the  grantor  could  not  question  and  be  of  no  force,  held  to  be  a  de- 
the  bank's  title.  Simson  v.  Bank,  46  livery  in  escrow,  but  being  to  the 
Hun  (N.  Y.).  l.'jG.  grantee  and  not  to   a  stranger  the 

ziJndley  v.  (JrafT,  37  Minn.  338.  deed  became  absolute  to  the  grantee. 

sWorrall   v.    JIunii,  5   N.  Y.   229;  Stevenson  v.    Crapnell,    114    111.   19. 

Berry  V.  Anderson,  22  Ind.  39;  Beers  Where  the  grantor   voluntarily    de- 

V.   Beers,  22  Mich.  44;  Fairbauks  v.  livers  a  deed  to  tlie  grantee  he  can- 

Metcalf,   8   Mass.  238 ;  Stevenson  v.  not  show  by  parol  that  it  was  a  con- 

Crapnell,  114  111.  19;  McCann  v.  Ath-  ditional  delivery.     "Williams  v.  Hig- 

erton,  106  111.  31 ;  Duncan   v.  Pope,  gins,  69  Ala.  517. 
47  Ga.  445. 


518  CONVEYANCE. 

But  the  rule  that  a  deed  cannot  be  dehvered  to  a  party  to 
whom  it  is  made  as  an  escrow,  and  that  in  such  case  the  de- 
livery is  absolute  and  the  condition  nugatory,  is  applicable 
only  to  the  case  of  deeds  which  are  upon  their  face  complete 
contracts,  requiring  nothing  but  delivery  to  make  them  per- 
fect according  to  the  intention  of  the  parties.^ 

The  depositary  of  an  escrow  is  limited  strictly  to  the  condi- 
tions of  the  deposit,  a  compliance  with  which  alone  justifies  its 
delivery.  He  is  a  special,  not  a  general  agent,  and  the  person 
dealing  with  him  is  bound  to  know  the  extent  of  his  powers.^ 

§  16.  Acceptance.  To  constitute  the  delivery  of  a  deed 
sufficient  to  pass  title  to  real  estate  it  must  not  only  be  deliv- 
ered by  the  grantor,  but  must  also  be  accepted  by  the  grantee.' 
It  is  the  concurrence  of  the  two  acts  that  constitutes  the  deliv- 
ery; and  either,  standing  alone,  will  be  insufficient  to  divest 
title.  An  express  assent  is  not  required,  however,  to  make  up 
a  valid  deliverj';  for  acceptance  may  be  and  verj^  frequently 
is  implied,  and  where  the  grant  is  beneficial  to  the  grantee  his 
consent  will  ordinarily  be  presumed  in  the  absence  of  proof  to 
the  contrary.^  Neither  the  presence  of  the  grantee  at  the  mo- 
ment of  delivery,  nor  his  previous  authority  to  a  third  person 
to  receive  the  deed  on  his  behalf,  nor  yet  his  subsequent  ex- 
press assent  to  it,  are  necessary  to  make  a  valid  delivery;  for 
in  either  case  assent  to  a  beneficial  grant  will  be  presumed, 
although  of  course  dissent  may  be  shown  and  the  deed  thereby 
rendered  ineffectual.* 

1  Wendlinger  v.  Smith,  75  Va.  309.  Ohio  St.  377;  Dikes  v.  Miller,  24  Tex. 

2  Chicago,  etc.  Land  Co.  v.  Peck.  317;  Spencer  v.  Carr,  45  N.  Y.  406; 
112  111.  408;  Evarts  v.  Agnes,  4  Wis.  Jackson  v.  Bodle,  20  Johns.  (N.  Y.) 
343;  Smith  v.  Bank,  32  Vt.  350;  Og-  184. 

den  V.  Ogden,  4  Ohio  St.  182.  5  Merrills  v.   Swift,  18  Conn.  257; 

3  Commonwealth  v.  Jackson,  10  Thorne  v.  San  Francisco,  4  Cal.  169; 
Bush  (Ky.),  424;  Comer  v.  Baldwin,  Weber  v.  Christen,  121  III.  91.  A 
16  Minn.  172;  Welch  v.  Sacket,  12  father  conveyed  to  his  daughter,  six 
Wis.  243 ;  Bank  v.  Webster,  44  N.  H.  years  old,  certain  realty  in  fee-simple 
264;  Oxnard  v.  Blake,  45  Me.  602;  without  her  knowledge  and  with  no 
Stewart  v.  Redditt,  3  Md.  67 ;  Jack-  money  consideration,  and  two  days 
son  V.  Phipps,  12  Johns.  (N.  Y.)  418.  thereafter  placed  the  deed  on  record. 

*  Rogers  v.  Cary,  47  Mo.  235 ;  Dale  Held,  that  delivery  and  acceptance 
V.  Lincoln,  62  111.  22:  Cecil  V.  Beaver,  would  be  presumed.  Vaughn  v. 
28  Iowa,  241 ;   Mitchell  v.    Ryan,  3   Godman,  103  Ind.  499. 


ACKNOWLEDGMENT. 


519 


CHAPTER   XX. 


ACKNOWLEDGMENT. 


i  1.     General  principles. 

2.  Who  may  take. 

3.  Form. 

4.  Venue. 

5.  Date. 

6.  Party  acknowledging  must  be 

identified. 

7.  Fact  of  acknowledgment  must 

be  stated. 


§8. 


10. 

11. 
12. 

13. 


Party  acknowledging  must  un- 
derstand act. 

Acknowledgment  by  corpora- 
tion. 

Conveyances  by  married 
women. 

Authentication  by  officer. 

Clerical  errors  —  Surplusage  — 
Omissions. 

Proof  of  official  character. 


§  1.  General  principles.  The  primary  office  of  an  acknowl- 
edgment is  to  authenticate  the  conveyance  concerning  which 
it  is  made,  and  to  furnish  authority  for  the  production  of  the 
instrument  in  evidence  without  other  or  further  proof  of  its 
execution.^  The  certificate  of  authentication  is  no  part  of  the 
conveyance,  neither  is  it  the  act  of  either  party  to  it;^  and  al- 
though a  deed  is  defectively  acknowledged  or  certified,  or 
even  not  acknowledged  at  all,  if  made  by  parties  who  are  sui 
juris^  it  is  still  valid  and  effectual  as  between  the  parties  and 
subsequent  purchasers  with  actual  notice,  and  passes  title 
equally  with  one  duly  acknowledged  and  certihed.^  The  cer- 
tificate cannot  affect  the  force  of  the  instrument,^  but  is  only 
evidence  in  regard  to  its  execution,  aS.ov(\mg  pinma  facie  proof 
of  facts,  which  in  its  absence,  may  be  established  by  other  evi- 
dence. It  is,  however,  a  prerequisite  for  registration  in  a 
majority  of  the  states,  and  a  necessary  incident  to  every  con- 
veyance designed  to  furnish  constructive  notice  under  the  re- 
cording acts;  and  where  by  reason  of  defects  or  omissions  the 
statutory  requirements  are  not  substantially  complied  with, 
the  instrument  is  not  legally  recordable,  and  although  actu- 
ally transcribed  the  record  thereof  will  not  afford  constructive 
notice.* 

iWarvelle  on   Abstracts,  171-185,  s  Stevens  v.  Hampton,  46  Mo.  404: 

and  cases  cited.  Hoy  v.  Allen,  27  Iowa,  20!:'. 

2 Harrington  v.  Fish,  10  Mich.  415;  ■'Dale  v.  Thurlow,  12  Met.  157. 

Gray  v.  Ulrich,  8  Kan.  112.  » Pringle  v.  Dunn,  37  Wis.  441) ;  Bass 


520  CONVEYANCE. 

The  formality  of  acknowledgment  has  been  rendered  ex- 
tremely simple  of  late  years,  and  a  substantial  compliance  with 
the  statute  prescribing  its  form  and  requisites  is  all  that  is 
required  in  an  ordinary  certificate.'  Material  omissions,  un- 
aided by  other  circumstances,  have  frequently  been  held  to 
vitiate  the  acknowledgment  ;2  yet  generally,  when  the  defect 
can  be  reconciled,  or  does  not  defeat  the  acknowledgment  by 
indefiniteness  or  uncertaint}^,  it  will  not  invalidate.^  Courts  are 
always  inclined  to  construe  clerical  errors  liberally ;  *  and  it  is 
the  policy  of  the  law  to  uphold  certificates  whenever  substance 
is  found,  and  not  to  suffer  conveyances,  or  proof  of  them,  to 
be  defeated  by  technical  or  unsubstantial  objections,*  and  in. 
construing  them  resort  may  always  be  had  to  the  deed  or  in- 
strument to  which  they  are  appended.^  Nothing,  however, 
will  ordinarily  be  presumed  in  favor  of  a  certificate,  which 
should  state  all  the  facts  necessary  to  a  valid  oiBcial  act.' 

§  2.  Who  may  take.  The  right  to  take  and  certify  acknowl- 
edgment of  deeds  is  wholly  statutory,  and  can  be  exercised  only 
by  such  officers  as  are  directly  or  by  necessary  implication 
enumerated  and  pointed  out.  This  jurisdiction  is  usually  di- 
vided into  three  classes:  first,  where  the  proof  is  made  within 
the  state;  second,  where  the  proof  is  made  without  the  state, 

V.   Estill,   50  Miss.   300 ;   Willard  v.  v.  Moore,  51  Mo.  589 ;  Tenney  v.  East 

Cramer,  36  Iowa,  22.  Warren  Co.  43  N.  H.  343. 

1  Russ  V.    Wingate,    30  Wis.   440;  <  gcharfenburg  v.  Bishop,  35  Iowa, 
Bradford    v.    Dawson,    2  Ala.    203;  60;  Russ  v.  Wingate,  30  Miss.  440. 
Calumet  Co.  v.  Russell,  68  111.  426 ;  5  Wells  v.  Atkinson,  24  Minn.  161 ; 
Carpenter  v.  Dexter.  8  Wall.  (U.  S.)  Kelly  v.  Calhoun,  95  U.  S.  710. 

513;  Ogden  v.  Waters,  12  Kan.  282;  <*  Wells  v.  Atkinson,  24  Minn.  161; 

Jacoway  V.  Gault,  20  Ark.  190 ;  War-  Tubbs  v.    Gatewood,    26    Ark.    128; 

ren  v.  Hardy,  6  Md.  525 ;  Alexander  Barnet  v.  Praskauer,  62  Ala.  486. 

V.  Merry,  9  Mo.  510;  Barton  v.  Mor-  7  Witmore  v.  Laird,  5  Biss.  (C.  Ct.) 

ris,  15  Ohio,  408;  Henderson  v.  Grew-  160;  Jacoway  v.  Gault,  20  Ark.  190; 

fU,   8  Cal.    581;    Doru    v.    Best,    15  Knight  v.  Smith,  1  Oreg.  276.     The 

Tex.  62.  taking  of  an  acknowledgment  is  now 

2  Hiss  V.  McCabe,  45  Md.  77;  Smith  generally  regarded  as  a  ministerial 
V.  Hunt,  13  Ohio,  260;  Hayden  v.  act  (Odiorne  v.  Mason,  9  N.  H.  24; 
Westcott,  11  Conn.  129.  Biscoe  v.  Bird,  15  Ark.  655;  Lynch 

'Hartshorn  v.  Dawson,  79  111.  108;  v.  Livingstone,  6  N.  Y.  422),  and  de- 
Scharfenburg  v.  Bishop,  35  Iowa,  60 ;  pendent  on  statute,  and  the  certif- 
Sanford  v.  Bulkley,  30  Conn.  344 ;  icate  must  show  that  the  statutory 
Magness  v.  Arnold,  31  Ark.  103;  requirements  have  been  substantially 
Chandler  v.   Spear,  22  Vt.  388;  Dail    pursued.     Meddock  v.  Williams,  12 

Ohio,  377. 


ACKNOWLEDGMENT.  521 

but  within  the  United  States  or  the  territories;  and  third, 
vhere  the  ))roof  is  made  in  a  foreign  country.  OfTiceis  of  the 
first  and  second  classes  are  usually  notaries  public,  the  officers 
of  courts  having  a  seal,  and  justices  of  the  peace.  In  the  sec- 
ond class  is  also  an  officer  known  as  a  commissioner  of  deeds. 
Officers  of  the  third  class  include  ministers  or  secretaries  of 
legations,  consuls  of  the  Fnited  States,  and  generally  any  officer 
authorized  by  the  laws  of  such  foreign  countries  to  take  ac- 
knowledgments of  conveyances. 

It  would  scarcely  seem  necessary  to  state  that  a  grantee,  not- 
withstanding he  may  be  otherwise  qualified,  is  not  competent 
to  take  the  acknowledgment  of  his  grantor,^  even  though  he 
is  merely  a  trustee;^  but  this  restriction  does  not  extend  to  the 
attesting  witnesses,  who  may  properly  act  in  both  ca})acities.^ 
Nor  can  a  grantor  take  his  own  acknowledgment.*  It  would 
seem,  however,  that  the  acknowledgment  of  a  deed  to  a  married 
woman  is  not  invalid  because  taken  before  the  husband  of  the 
grantee,  who  was  a  properly  qualified  officer.'^ 

Clerks  of  courts  having  a  seal  have  general  jurisdiction  in 
all  of  the  states  and  territories,*^  and  a  deputy  is  usually  per- 
mitted to  take  acknowledgments  whenever  the  principal  might 
if  present."     IJut  just  how   the  attestation  should   be  made, 

1  Beaman  v.  Whitney,  22  Me.  413;  never  act  as  an  officer  in  taking  an 

Groesbeck  v.   Seeley,    13  Mich.   329.  acknowledgment  to  the  conveyance. 

The  impropriety  of  such,  on  general  Wasson  v.  Conner,  54  Mis.s.  351.    But 

principles,  is  manifest;  but  it  is  fur-  where  a  sheriff's  deed  was  acknowl- 

ther  held,   in  some  states,   that  the  edged  in  a  court  over  which  one  of 

taking  of  an  acknowledgment  is  a  the  grantees  presided  as  judge,  held, 

quasi  judicial  act,  the  officer  acting  no  objection  to  the  deed.     Lewis  v. 

in  a  judicial  character  in  determin-  Curry,  74  Mo.  49, 

ing  whether  the  person  representing  2  Dj^ji  y   Morse,  51  Mo.  589;  Brown 

iiimself  to  be,  or  represented  by  some  v.  Moore,  38  Tex.  645. 

one  else   to  be,  the  grantor   named  ^  Baird  v.  Evans,  58  Ga.  350. 

in    the  conveyance,  actually  is  the  ^  Davis  v,  Beazley,  75  Va.  491. 

grantor;  and  in  determining  further  *  Kimball  v.  Johnson,  14  Wis.  674. 

whether  the  person   thus  adjudged  *  May  be  taken  by  the  judge  of  a 

to  be  the  grantor  does  actually  and  court  of  record  who  is  clerk  of  his 

trul\'  acknowledge  that  he  executed  own  court,  and  the  attestation  certi- 

Ihe  instrument.    B3his  cirtiUcate  he  tied  by  hini  under  the  seal  of  the  court, 

makes  an  official  record  of  his  adju-  Moore  v.  Hill,  59  Ga.  760. 

dication;  and  inasmuch   as  no  man  "Touchard  v.   Crow,   20  Cal.    150; 

can  be  a  judge  in  his  own  case,  it  fol-  Hope  v.  Sawyer,  15  Kan.  252;  Talbott 

lows  that  the  grantee  in  a  deed  can  v.  Hooser,  12  Bush  (K3'.),  408;  Gib- 


522  CONVEYANCE. 

where  the  act  is  performed  by  a  cleput}",  seems  to  be  a  matter 
of  dispute.  In  some  states  it  would  appear  that  the  act  must 
purport  to  be  the  act  of  the  principal  and  be  signed  with  his 
name  per  deputy;^  in  others  that  the  certificate  must  appear 
to  be  the  act  of  the  principal  without  reference  to  the  deputy;'^ 
and  again  in  others  that  the  deputy  may  assume  to  exercise 
all  the  powers  of  his  principal  without  mentioning  or  alluding 
to  him  in  the  body  of  the  certificate  or  signature,  the  deputy 
in  both  cases  signing  his  own  name  and  title  of  office.' 

Mayors  of  cities  are  also  frequently  given  this  power,  but  it 
would  seem  that  the  mayor  of  a  town  would  have  no  right 
to  exercise  the  right  under  the  authority  given  to  ma3'ors  of 
cities. 

§  3.  Form.  It  has  been  repeatedly  held  by  courts  that  in 
the  acknowledgment  of  deeds  it  is  sufficient  if  it  appears  that 
the  statute  has  been  substantially  observed  and  followed/  A 
mere  literal  compliance  is  not  demanded  or  expected.*  The 
polic3'  of  the  law  is  to  uphold  conveyances,^  and  in  the  proof 
of  them  a  liberal  construction  is  always  allowed.^ 

bons  V.  Gentry,  20  Mo.  463;  Eose  v.  the  southern  district  of  Illin6is,  it  was 
Newman,  26  Tex.  131 ;  Kemp  v.  Per-  regarded  as  sufficient  if  the  person 
ter,  7  Ala.  137.  taking    the    acknowledgment    was 

1  Abrams  v.  Erwin,  9  Iowa,  87 ;  clerk  de  facto,  without  reference  to 
Gibbons  v.  Gentry,  20  Mb.  468.  the  temporary  character  of  his  ap- 

2  Talbott  V.  Hooser,  12  Bush  (Ky.),  pointment.  To  same  effect.  Brown 
408.  And  where  one  deputy  clerk  takes  v.  Lunt,  37  Me.  423;  Prescott  v. 
an  acknowledgment  of  a  deed,  in-  Hayes,  42  N.  H.  56. 
dorsingonit  a  memorandum  thereof,  *  Knight  v.  Smith,  1  Oi".  276;  Ja- 
another  dej^uty  may  write  out  and  coway  v.  Gault,  20  Ark.  190;  Bell  v. 
sign  the  certificate.     Drye  v.  Cook,    Evans,  10  Iowa,  353. 

14  Bush  (Ky.),  459.  5  Stewart  v.    Button,    39    111.  91; 

3  McRae  v.  McGuire,  23  Miss.  100 ;  Wickersham  v.  Reeves,  1  Iowa,  413. 
Beaumont  v.  Yeatman,  8  Humph.  <>  Wells  v.  Atkinson,  24  Minn.  161. 
(Tenn.)  542;  Touchard  v.  Crow,  20  -Kelly  v.  Calhoun,  95  U.  S.  710; 
Cal.  150.  In  this  latter  case  the  at-  Henderson  v.  Grewell,  8  Cal.  581 ; 
testation  read:  "Witness  ray  hand  W^arren  v.  Hardy,  6  Md.  525;  Alex- 
and  seal  of  court  affixed  at  office  this  ander  v.  Merry,  9  Mo.  510;  Barton  v. 
SOthdayof  July,  1852.  John  A.  Brew-  Morris,  15  Ohio,  408;  Monroe  v. 
ster,  deputy  clerk  of  Sonoma  county."  Arledge,  23  Tex.  478.  The  omission 
In  Woodruff  v.  McHarry,  56  111.  218,  of  the  statement  of  immaterial  facts, 
where  a  deed  was  acknowledged  be-  notwithstanding  they  are  part  of  a 
fore  a  person  who  described  himself,  prescribed  form,  will  not  constitute 
in  his  certificate,  as  clerk  j^i'O  tempore  a  fatal  defect  in  the  certificate. 
of  the  United  States  circuit  court  for  Bradford  v.  Dawson,  2  Ala.  203. 


ACKNOWLEDGMENT.  523 

Where  a  conveyance  of  lands  in  one  state  is  acknowledged 
before  a  commissioner  in  another  state,  the  same  form  must 
be  used  as  if  the  acknowledgment  Avcre  made  in  the  state 
where  the  land  is  situate.' 

§  4.  Yenue.  Expicss  statutory  requirements  providing  for 
the  taking  of  the  acknowledgment  in  the  county  where  the 
land  is  situated,  or  where  the  parties  reside,  etc.,  are  usually 
held  to  be  mandatory,  and  compliance  in  this  respect  is  essen- 
tial to  validity;'^  but  ordinarily  an  acknowledgment  may  be 
made  anywhere  before  an  officer  authorized  by  the  laws  of  the 
state  where  the  land  is  situated  to  take  and  certify  the  same. 
In  every  instance,  however,  the  certificate  must  show  on  its  face 
that  it  was  made  at  some  assignable  locality,  and  within  the 
jurisdiction  of  the  certifying  officer.^  This  is  accomplished  by 
a  note  of  the  county  and  state  called  the  venue,  immediately 
preceding  the  certificate  proper,  together  with  the  usual  "ss" 
or  scilicet,  which  literally  means,  "let  it  be  known,"'  or  "be  it 

known,  that  in  the  state  of ,  at  the  county  of ,"  etc. 

The  use  of  the  venue  in  legal  and  other  writings  cannot  safely 
be  dispensed  with,  for  although  technical  yet  it  is  sure  and 
certain. 

The  omission  of  venue,  where  there  is  nothins:  in  the  certifi- 
cate  to  show  where  the  officer  who  took  the  acknowledirment 
resided  and  acted,  isgenerall}'  a  fatal  defect;*  and  the  same  is 
true  of  a  partial  venue  if  unaided  b}'  other  facts.^  It  has  been 
held,  however,  that  the  omission  of  the  venue  in  an  acknowl- 

1  Keller  v.  Moore,  51  Ala.  340.  state  of  New  York.     It  must  appear 

2Dickerson  v.  Talbot,  14  B.   Mon.  from  the  acknowledgment  where  it 

(Ky.)  49;  Hughes  v.   Wilkinson,  37  was  made  and  certified,  or  by  taking 

Miss.  482.  the  acknowledgment   and  the   deed 

'Montag  V.  Linn,  19  111.  399.  together  we  must  be  able  to  presume 

*  Vance  v.  Schuyler,  1  Gilm.  (III.)  in  what  state  it  was  taken.  The  of- 
160.  ficer  taking  it   can  act  only  within 

*  Hardin  v.  Kirk,  49  111.  153.  In  the  territorial  limits  of  his  jurisdic- 
this  case  the  venue  to  the  certificate  tion,  and  it  must  appear  that  the  act 
was,  "County  of  New  York."  The  was  performed  within  tliese  limits, 
court  say:  "This  venue  may  apply  In  this  case  the  certificate  and  deed 
equally  well  to  a  county  of  the  same  failed  to  show  where  the  officer  acted 
name  in  an}'  state  of  the  Union,  at  the  time  when  he  touk  tiiis  ac- 
There  is  nothing  in  the  deed  from  knowledgment,  and  is  defective,  and 
which  it  can  be  inferred  that  tlie  the  deed  is  therefore  inadmissible." 
acknowledgment  was  taken   in  the 


524  CONVEYANCE. 

eclgment,  taken  b}^  a  justice  of  the  peace,  may  bo  obviated  by 
proof  that  such  officer  was  at  the  time  a  justice  of  the  peace 
in  the  county  where  it  was  taken,  and  as  such  took  it;'  and 
further,  that  the  omission  of  the  name  of  the  county  in  the 
caption  to  a  certificate  otherwise  formal  and  sufficient,  where 
the  defect  was  supplied  by  the  seal  attached  so  as  to  show  the 
venue  or  county,  only  rendered  the  certificate  informal  and 
not  void.2 

Ordinarily  a  notary  may  exercise  his  office  anywhere  in  the 
state  of  his  appointment;  and  justices  of  the  peace  have  in 
many  instances  been  held  to  possess  the  same  power,  the  act 
being'  ministerial  and  not  judicial.^  The  theory  upon  which 
this  doctrine  proceeds  is  that  the  authority  to  perform  a  min- 
isterial act  attaches  to  the  officer  wherever  he  may  be,  unless 
restricted  by  statute  prescribing  territorial  limits.  The  pre- 
sumption is  that  the  act  was  performed  within  the  officer's 
jurisdiction.* 

§  5.  Date.  It  does  not  appear  that  a  date  is  essential  to  a 
certificate,^  even  though  the  statutory  form  may  provide  for  the 
same;*^  and  where  the  statute  requires  the  date  to  be  stated,  it 
seems  that  an  omission  in  this  particular  may  be  supplied  by 
resorting  to  the  deed  itself,  or  to  the  certificate  of  magistracy 
if  any  is  annexed.^ 

§  6.  Party  acknowledging  murt  Ibe  sufficiently  identified. 
The  first  of  the  two  primary  and  indispensable  elements  of  a 
certificate  of  acknowledgment  consists  of  the  identification  of 
the  party  whose  act  it  purports  to  be.  The  statutory  provis- 
ions of  all  the  states,  however  diverse  they  may  be  on  other 
subjects  connected  with  execution,  are  all  united  upon  this 
point;  and  unless  the  person  offering  to  make  such  acknowledg- 
ment shall  be  personally  known  to  the  certifying  officer  to  be 
the  real  person  who  executed  the  conveyance,  or  shall  be  proved 
to  be  such  by  a  credible  witness,  such  officer  has  no  authority 

1  Graham  v.  Anderson,  42  111.  514.  ^Rackleflf  v.   Norton,   19  Me.   274; 

2Chiniquy  v.    Catholic  Bishop  of  Bradley  v.  West,  60  Mo.  33. 

Chicago,  41  111.  148.  s  Irving  v.   Brownell,   11   111.  402; 

3  Day  V.  Brooks,  30  Mo.  515;  Biscoe  Rackleff  v.  Norton,  19  Me.  274. 

\.    Boyd,    15  Ark.  655;  Learned  v.  "j  Hobson  v.  Kissam,  8  Ala.  357. 

Allen,  14  Allen  (Mass.),  109;  Odiorne  'Bradford  v.  Dawson,  2  Ala.  203; 

V.  Mason,  9  N.  H.  30.  Kelly  v.  Rosenstock,  45  Md.  389. 


ACKNOWLEDGMENT.  525 

to  take  or  certify  the  acknowledgment.  The  evident  object  of 
these  provisions  is  to  prevent  one  individual  from  [)ersonating 
another,'  and  this  fact  of  identity  must  affirmatively  ap|)car  in 
the  certificate.  The  oflicer  must  know  the  person  in  whose 
name  the  acknowledgment  is  proposed  to  be  made,  and  must 
certify  to  such  knowledge;  and  a  substantial  compliance  with 
this  requirement  is  indispensable  to  tlie  validity  of  the  acknowl- 
edgment.- 

A  literal  compliance  in  this  regard  is  not  essential,  however, 
provided  the  fact  substantially  ai)pears,'  and  other  language 
than  that  used  by  the  statute  may  be  employed  where  the  im- 
port is  the  same.^  Courts  are  always  inclined  to  construe  mat- 
ters of  this  kind  liberally;*^  and  whenever  the  defect  can  be 

iMcConnel  v.   Reed,  3  Scam.  (111.)  v.   Thomas,  55  Mo.  581;  Warner  v. 

371.  Hardy,  G  Md.  525. 

2  Fryer  v.  Rockefeller,  G3  N.  Y.  268 ;       *  Bell  v.  Evans,  10  Iowa,  353 ;  Kelly 

Fogarty  v.  Finlay,  10  Cal.  239:  Gove  v.  Calhoun,  95  U.  S.  710;  Henderson 

V.    Gather,   23   111.    634 ;    Brinton  v.  v.  Grewell,  8  Cal.  581 ;  Thurnian  v. 

Seevers,    12    Iowa,    3b9;    Garnier  v.  Cameron,     24    Wend.    (N.    Y.)    87. 

Barry,  28  Mo.  438;  Pinckney  v.  Bur-  Where  a  certificate  stated  that  "  per- 

rage,  31  N.  J.  L.  21 ;  Smith  v.  Garden,  sonally  appeared  before  me  P.  H.  and 

28  Wis.  685;  Carpenter  v.  Dexter,  8  E.  H.,  his  wife,  who personally 

Wall.  (U.  S.)  513;  Pendleton  v.  But-  known  to  me,"  etc.,  omitting  "are" 
ton,  3  Conn.  406.  An  introduction  by  after  "who,"  it  was  held  that  such 
a  mutual  friend  is  sufficient  to  satisfy  omission  did  not  impair  the  deed,  as 
a  statutory  requirement  that  the  "who"  might  be  disregarded  as  su- 
officer  taking  the  acknowledgment  perfluous,  and  the  certificate  would 
shall  know  or  liave  satisfactory  evi-  then  bo  correct.  Hartshorn  v.  Daw- 
dence  that  the  person  making  such  son,  79  111.  108.  So,  where  the  word 
acknowledgment  is  the  individual  de-  "appeared"  was  omitted  after  the 
scribed  in  and  who  executed  the  in-  phrase  "before  me  personally,"  the 
strument,  if  such  introduction  satis-  omission  was  held  to  be  a  clerical 
fies  the  conscience  of  the  officer  as  to  error,  and  not  fatal  to  the  validity 
the  identity  of  the  party.  Wood  v.  of  the  instrument.  Scharfenburg  v. 
Back,  54  Barb.  (N.  Y.)  134.  A  cer-  Bishoi),  35  Iowa,  60.  A  certificate 
tificate  of  acknowledgment  which  that  A.,  "to  me  well  known,  ac- 
fails  to  recite  tiiat  the  grantor  was  knowledged."  etc.,  was  held  to  be 
known  to  the  officer,  but  does  recite  substantially  in  the  form  given  by 
that  the  grantor  signed  in  the  officer's  statute,  viz. :  that  A.,  "  known  to  me 
presence,  is  good  as  an  attestation,  to  be  the  person  whose  name  is  sub- 
though  defective  as  an  acknowledg-  scribed  to  the  foregoing  instrument, 
ment.    Rogers  v.  Adams,  66  Ala.  GOO.  acknowledged,"  etc.  Watkinsv.  Hall, 

STully  v.  Davis,  30  III.  103;  Rosen-  57  Tex,  1. 
thai  v,  Grillin,  23  Iowa,  263;  Robson       ^  Harrington  v.  Fish,  10  Mich.  415. 


626  CONVEYANCE. 

reconciled,  or  does  not  defeat  the  acknowledgment  by  indefi- 
niteness  or  uncertainty,  it  will  not  invalidate.' 

A  material  omission  unaided  by  other  circumstances,  or  a 
failure  to  designate  the  person  acknowledging  with  certainty, 

as  where  the  acknowledgment  purports  to  be  made  by 

Smith,  without  other  designation  of  the  person,^  or  where 
there  is  an  entire  omission  of  the  name  of  the  grantor,  will 
ordinarily  vitiate  the  certificate,  although  it  has  been  held  that 
if  the  certificate  shows  that  the  party  who  appeared  before  the 
oificer  was  the  grantor  and  that  he  and  no  one  else  made  the 
acknowledgment,'  or  where  he  is  referred  to  by  name  in  that 
part  of  the  certificate  referring  to  the  wife's  acknowledgment,* 
it  would  be  sufficient. 

§  7.  Fact  of  ackiiowledginent  must  be  stated.  The  second 
indispensable  requisite  to  a  valid  certificate  is  a  statement  of 
the  fact  of  acknowledgment;  for  not  onl}^  must  the  identity  of 
the  parties  appear,  but  it  must  further  be  shown  that  they  af- 
firmed the  execution  of  the  instrument  as  their  free  and  volun- 
tary act.  But  here,  as  in  the  former  instance,  form  is  not 
material,  provided  substance  be  found.  No  term,  however,  so 
fully  expresses  the  fact  as  the  word  "  acknowledge."  This,  by 
immemorial  usage  as  well  as  statutory  enactment,  has  obtained 
a  known  and  established  signification  when  used  in  this  con- 
nection, and  its  employment  or  words  of  equivalent  import  is 
absolutely  necessary  to  give  legal  effect  to  the  certificate.^  In 
the  case  of  ancient  deeds  much  latitude  has  been  allowed, 
and  the  exceptions  to  the  foregoing  rule,  if  such  they  can  be 

lOgden  V.  Walters,  13  Kan.  283.  ^Magness  v.  Arnold,  31  Ark.  103. 

2  Hiss  V.  McCabe,  45  Md.  77.  5  Bryan    v.    Ramii-ez,    8   Cal.    461 ; 

nVilcoxon  V.  Osborn,  77  Mo.  621.  Short  v.  Conlee,  28  111.  219;  Cabell  v. 

But  even  under  such  circumstances  Grubbs,  48  Mo.  353;  Stanton  v.  But- 

the  fact  of  personal  knowledge  must  ton,  2  Conn.  527;  Dewey  v.  Campau, 

appear;  and  a  certificate  which  simply  4  Mich.  565;  Huff  v.  Webb,  64  Tex. 

describes  the  persons  acknowledging  284.     The  formality  of  acknowledg- 

as"  grantors  of  the  within   indent-  ment  has  been  held  to  be  sufficiently 

ure,"  without  stating  that  they  were  expressed  by  the  term  "deposes  and 

known  to  the  officer  to  be  the  same  says."     Chouteau   v.  Allen,    70  Mo. 

pei'sons  who  are  described  in  and  who  290.  But  the  word  "  stated  "  has  been 

executed  the  deed,  would  be  insuffi-  held  insufficient.    Dewey  v.  Campau, 

cient.    Fryer  v.  Rockefeller,  63  N.  Y.  4  Mich.  565. 
268. 


ACKNOWLEDGMENT.  527 

called,  have  mainly  arisen  in  the  construction  of  such  instru- 
ments.' 

§  8.  Party  ackiiowlfMliriiiijj  must  understaml  purport  of  act. 

As  a  rule,  u.n  oflicur  who  Lukes  an  acknowletigiuenL  is  under 
no  oblifj^ation  to  explain  the  deed,  yeX  the  person  so  acknowl- 
edgin<^  should  understand  the  purport  of  his  act.  Ilence,  it 
has  been  held  that  a  notary's  certificate  of  acknowledgment 
is  of  little  force  when  the  person  purporting  to  make  the  ac- 
knowledgment does  not  understand  English,  and  tlie  notary 
has  not  explained  the  effect  of  the  act  in  such  ])erson's  own 
language,  and  seen  to  it  liimself  that  it  was  understcjod.- 

§  9.  Acknowledgment  by  corporation.  In  man}',  perhaps 
a  majority,  of  the  states,  there  is  no  statutory  provision  relative 
to  the  acknowledgment  of  deeds  by  corporations.  In  such 
cases  the  officer  affixing  the  seal  is  the  party  executing  the 
deed  within  the  meaning  of  the  statute  requiring  deeds  to  be 
acknowledged  by  the  grantor.' 

§  10.  Conveyances  by  married  women.  Notwithstanding 
the  fact  that  in  a  majority  of  the  states  a  married  woman  is 
now  as  free  to  acquire,  hold  and  transmit  real  property  by 
good  and  indefeasible  title  as  her  husband,  it  must  ever  be 
borne  in  mind  that  she  has  no  legal  existence  or  power  to 
transfer  her  interest  in  lands  except  through  the  statutory 
channel.  This  channel  may  be  broad  or  contracted,  according 
to  the  policy  of  the  state,  and  varying  from  time  to  time  as 
impediments  have  been  removed,  but  it  is  a  groove  through 
which  her  title  must  pass  to  be  valid;  and  any  departure  from 
the  course  marked  by  statute  is  to  render  the  conveyance  nu- 
gatory and  without  legal  effect.  In  a  majority  of  instances 
the  prescribed  mode  of  executing  the  conveyance  confers  upon 
her  the  power  to  convey,  and  here  rests  the  broad  distinction 
between  conveyances  by  married  women  and  others  who  are 
sui  juris.  AVhen  the  power  exists  independent  of  its  mode  of 
execution,  and  has  been  defectively  executed,  it  is  not  a  case 
of  want  of  power,  but  of  defective  execution,  which  a  court  of 
equity  will  aid.  But  where  the  powder  and  mode  of  execution 
are  inseparable  —  the  power  resulting  from  the  mode  —  and  that 

1  See  Jackson  V.  Gilclirist,  I.')  Johns.  ^Lovett  v.  Saw-mill  Asso.  6  Paige 
89.  (N.  Y.),  54 ;  Kelly  v.  Calhouu,  5  Otto 

2  Harrison  v.  Oakman,  56  Mich.  390.    (U.  S,),  710. 


528  CONVEYANCE. 

mode  has  not  been  pursued,  it  is  not  a  case  of  defective  execu- 
tion, but  a  want  of  power,  which  a  oourt  of  equity  cannot  aid. 
Therefore,  when  a  married  woman  attempts  to  convey,  and 
hicks  power  from  not  pursuing  the  mode  prescribed,  courts 
will  not  relieve,  because. to  amend  the  mode  is  to  create  the 
power.'  The  acknowledgment,  therefore,  is  an  essential  part 
of  a  married  woman's  deed,-  and  not  merely  an  authentication. 
The  special  requirements  of  the  statute,  if  any,  must  be  fully 
complied  with,  and  the  fact  of  compliance  must  be  fully  and 
clearly  set  forth  in  the  certificate.^  The  rules  of  construction, 
however,  are  the  same  as  in  other  cases  of  acknowledgment; 
and  it  will  be  understood  that,  while  compliance  is  necessary 
to  impart  validity,  the  strict  letter  of  the  statute  need  not  nec- 
essarily be  followed,  a  substantial  compliance  being  all  that 
is  required.'' 

By  the  strict  rules  of  the  common  law  the  legal  existence  of 
the  wife  was  merged  in  the  husband,  and  she  could  convey  her 
real  estate  only  by  uniting  with  him  in  levying  a  fine,  which, 
being  a  solemn  proceeding  of  record,  the  judges  w^ere  sup- 
posed to  watch  over  and  protect  her  rights,  and  ascertain  by 
a  private  examination  that  her  participation  was  voluntary. 
The  statute  relating  to  acknowledgments  generall}^  adopted 
in  this  country  provided  a  substitute  for  the  common-law  fine, 
and  in  lieu  thereof  prescribed  an  examination  and  certificate 
by  a  designated  officer.  But  while  it  enlarged  the  power  of 
alienation  it  still  preserved  the  characteristics  and  essential 
features  of  the  ancient  ceremony,  and  unless  the  wife's  deed 
was  made  in  conformity  thereto  it  was  inoperative  to  any  ex- 
tent or  for  any  purpose.'  This  the  courts  have  uniformly 
held ;  and  where  it  appears  that  there  has   been  a  failure  to 

iSilliman  v.  Cummins,  13  Ohio,  Brown  v.  Farran,  3  Ohio,  140;  Thayer 
116;  Grove  v.  Zumbro,  14  Gratt.  (Va.)  v.  Toirey,  37  N.  J.  L.  339;  Reynolds 
501.  T.  Kingsbury,  15  Iowa,  283;  Goode  v. 

2  Mason  v.  Brock,  12  111.  273.  Smith,  13  Cal.  81;  Stuart  v.  Dutton, 

3  Landers  v.  Bolton,  26  Cal.  408 ;  39  111.  91 ;  Pardun  t.  Dobesberger,  3 
Lindly  v.  Smith,  46  111.  523;  Chauvin  Ind.  389;  Bernard  v.  Elder,  50  Miss. 
V.  Wagner,  18  Mo.  531;  Ward  v.  Mc-    336. 

Intosh,    12    Ohio    St.   231;   Laird  v.  5 Lane  v.  Dolick,  6  McLean,  200; 

Scott,  5  Heisk.  (Tenn.)  314;  Johns  v.  Davis  v.   Bartholomew,   3  Ind.  485; 

Reardon,  11  Md.  465;  Grove  v.  Zum-  Stone  v.   Montgomery,  35  Miss.  83; 

bro.  14  Gratt.  (Va.)  501.  Delassus  v.  Boston,  19  Mo.  425;  Rus- 

4Tubbs  V.  Gatewood,  26  Ark.  128;  sell  v.  Rumsey,  35  111.  362. 


ACKNOWLEDGMENT.  629 

comply  with  the  statutory   requirements  the  defect   rendei-s 
the  deed  void  and  without  effect.^ 

Thus,  if  the  statute  requires  that  the  contents  of  the  deed 
shall  be  explained  to  the  wife,  this  is  essential,  and  a  substan- 
tial compliance  must  be  shown;  and  if  the  certificate  fails  to 
show  statutory  conformity  by  neglecting  to  state  that  the  wife 
was  made  accjuaintcd  with  the  contents  of  the  deed,  the  ac- 
knowledgment will  be  fatally  defective.-'  So,  too,  the  fact 
that  her  acknowledgment  was  voluntary  and  without  compul- 
sion is  a  matter  of  substance  and  sliould  be  shown,  and  a  fail- 
ure so  to  state  renders  the  conveyance  inoperative;^  and  the 
same  is  true  of  a  failure  to  state  that  she  does  not  wish  to  re- 
tract it,  when  this  is  made  a  necessary  averment  by  statute.* 
If  a  private  examination  is  required  by  statute  a  recital  of 
the  same  becomes  one  of  the  essential  features  of  the  certificate, 
to  omit  which  is  to  render  the  whole  certificate  valueless;-^ 
and  generally  any  omission  of  any  specially-prescribed  re- 
quirement destroys  the  effect  of  the  acknowledgment  and  also 
of  the  conveyance  which  it  is  intended  to  prove. 

An  express  relinquishment  of  dower  is  required  in  many 
states,  and  when  such  is  the  case  an  acknowledgment  without 
this  formality  would  be  insufficient;^  and  the  same  is  true  of 
a  release  and  waiver  of  the  right  of  homestead  when  required 
by  statute. 

The  tendency  of  recent  legislation  has  been  to  abrogate 
most,  and  in   some   states   all,  of  the  many  special  features 

I  Martin  V.  Dwelly,  G  Wend.  (N.  Y.)  burn  v.  Pennington,  8  B.   Mon.  217; 

9;   Butler    v.    Buckingham,    5    Day  Bartlett  v.  Fleming,  3  W.  Va.  163. 
(Conn.),  492;  Lane  v.  McKeen,  15  Me.        ^  Grove  v.  Zumbro,  14  Gratt.  (Va.) 

304;    King    v.    Mosely,    5   Ala.    GIO;  501 ;  Chauvin  v.  Wagner.  18  Mo.  531 ; 

Landers  V.  Bolton,  26  Cal.  408 ;  Lind-  Bateman's    Petition,    11    R.    L    585; 

ley.v.  Smith,  46  III.  523;  Wamsell  v.  Landers  v.  Bolton,  26  Cal,  408;  Linn 

Kern,  57  Mo.  478;  Grove  v.  Zumbro,  v.  Patton,  10  W.  Va.  187;  Belcher  v. 

14  Gratt.  (Va.)  501.  Weaver,  46  Tex.  293. 

•-'Pease    v.    Barbers,    10    Cal.    403;       ''Stillwell  v.  Adams,  29  Ark.   346: 

O'Ferrall   v.    Simplot,    4   Iowa,    381;  Hartley  v.  Ferrell,  9  Fla.  374;  Jonlan 

Silliman  v.  Cummins,  13  Ohio,  116;  v.  Corey,   2   Ind.    385:   Edgerton   v. 

Moorman  v.    Board,  11  Bush  (Ky.),  Jones,  10  Minn.  427 ;  Rice  v.  Peacock, 

135;  Hariston  v.  Randolph,  12  Leigh  37  Tex.  392;  Garrett  v.  Moss,  22  III. 

(Va.),  445.  363;  Russ  v.  Wingate.  30  Miss.  440. 

3  Louden  v.  Blythe,  27  Pa.   St.  22;       ^Lindley    v.    Smith,    46    111.    524; 

Pratt  V.  Battels,   28  Vt.   685;  Black-  Thomas  v.  Meir,  18  Mo.  573. 
34 


1 


530  CONVEYANCE. 

that  formorl}'  characterized  the  acknowledgments  of  married 
women,  whether  in  conveyance  of  their  own  lands  or  when 
joining  in  the  husband's  conveyance.  Separate  examinations 
are  no  longer  required ;  nor  is  the  wife  compelled  to  make  any 
statements  relative  to  her  acknowledgment  different  from 
those  required  of  other  persons.  A  special  renunciation  of 
dower  is  in  some  cases  necessary,  but  this  is  almost  the  only 
one  of  the  old  features  "that  has  been  retained. 

§  11.  Authentication  Iby  officer.  A  certificate  should  be 
made  under  the  hand  of  the  certif3'ing  officer — that  is,  he  must 
sign  it;^  the  insertion  of  his  name  in  the  body  of  the  certifi- 
cate is  not  enough.^  And  while  it  has  been  held  that  a  seal  is 
not  essential  to  a  valid  official  act  unless  required  by  express 
statute,'  yet,  if  the  statute  does  prescribe  this  requirement,  he 
must  affix  the  same.*  In  some  states  a  deed  without  a  notarial 
seal  to  the  notary's  certificate  of  acknowledgment  is  inadmis- 
sible in  evidence.^ 

§  12.  Clerical  errors  —  Surplusage  —  Omissions.  Courts 
are  ever  inclined  to  construe  clerical  errors  liberall}'^;  and  it  is 
the  polic}''  of  the  law  to  uphold  certificates  whenever  substance 
is  found,  and  not  to  suffer  conveyances,  or  proof  of  them,  to 
be  defeated  by  technical  or  unsubstantial  objections.**  Sur- 
plusage on  the  one  hand,'^  or  mere  clerical  omissions  on  the 
other,*  will  not  usually  affect  the  validity  of  a  certificate,  pro- 

1  Carlisle  v.  Carlisle,  78  Ala.  542.  knowledgmeut  which  is  perfect  with- 

^Marston  v.  Brashaw,  18  Mich.  81.  out  them,  such  redundancy  does  not 

3  Harrison  V.  Simmons,  55  Ala.  510;  vitiate   it.     Whitney   v.    Arnold,    10 

Farman   v.  Buffam,  4  Cush.  (Mass.)  Cal.  531. 

260;  Thompson  v.  Morgan,  6  Minn.  8 As   where   the   word   "his"  was 
261;  Commissioner  v.  Glass,  17  Ohio,  omitted  before  the  words  "free  and 
542.  voluntary  act"  (Dickerson  v.  Davis, 
-•  Little  V.  Dodge,  32  Ark.  453 ;  Buell  12    Iowa,  353);  or    the    word    "ap- 
v.  Irwin,   24  Mich.    145;  Ballard  v.  peared,"  which  should  have  followed 
Perry,    28  Tex.   347,     See  Booth  v.  "personally,"  etc.  (Scharfenburg  v, 
Clark,  12  111.  129.  Bishop,  35   Iowa,    CO);  or   the   word 
5See  Meskimen  v.  Day,  35  Kan.  46.  "are"'  before   "personally  known," 
*  Scharfenburg  v.  Bishop,  35  Iowa,  etc.     Hartshorn  v.  Dawson,    79  111. 
60;  Wells  v.  Atkinson,  24  Minn.  161 ;  108.     So,  also,  where  the   certificate 
Tubbs    V.    Gatewood,   26    Ark.    128;  omits  the  name  of  the  grantor,  but 
Barnet  v.  Praskauer,  62  Ala.  486.  shows  that  the  party  who  appeared 
''Stewart    v.    Dutton,    39    111.    91,  before  the  officer  was  the  grantor, 
where  it  was  held  that,  when  words  this  has  been  held  sufficient.     Mag- 
are  inserted   in  a  certificate  of  ac-  ness  v.  Arnold,  31  Ark.   103.     None 


ACKNOWLKDCiMENT.  531 

vidcd  they  do  not  amount  to  matters  of  substance  which  can- 
not be  supplied  from  the  context.  Nor  will  defective  gram- 
matical expressions/  or  the  transposition  of  words  —  evidentl}' 
the  result  of  inadvertence-  —  be  permitted  to  defeat  the  ac- 
knowledgment or  impair  the  deed.  An  evident  omission  from 
the  certificate  may  be  supplied  by  correction  where  the  omis- 
sion consists  of  obvious  words.' 

Yet  as  nothing  is  presumed  in  favor  of  an  official  certificate, 
which  must  state  all  the  facts  necessary  to  a  valid  official  act,* 
an  omission  of  anything  that  gives  substance  to  the  certificijte 
will  be  fatal  to  its  validit}'.  Courts  have  no  authority  to  pre- 
sume that  substantial  requirements  of  the  statute  have  been 
complied  with  any  further  than  the  certificate  affirmatively 
shows.  Hence,  if  the  omission  is  material,  construction  cannot 
aid  it.* 

§  13.  Proof  of  official  cliaracter.  The  acknowledgment 
must  not  only  be  made  before  some  person  authorized  to  take 
the  same,  but  the  proof  of  his  official  character  should  in  some 
way  be  apparent  upon  the  certificate  or  some  other  paper 
thereto  annexed.  If  the  lands  conveyed  are  within  the  certi- 
fying officer's  jurisdiction,  extraneous  evidence  of  his  authority 
is  not  ordinarily  required,  particularly  if  he  is  an  officer  pos- 
sessing or  authorized  to  employ  a  seal,  and  the  same  has  been 
attached  to  his  certificate.  If  the  instrument  is  proved  with- 
out the  state,  a  certificate  of  magistracy  as  well  as  conformity 
must  ordinarily  accompany  the  certificate,  although  this  is  a 
matter  almost  wholly  statutory,  and  the  statutes  of  the  states 
are  not  uniform  in  their  requirements. 

A  certificate,  properl}'^  drawn,  should  in  some  manner  dis- 
close the  official  title  of  the  ])erson  making  it;  and  so  impor- 

of  said   omissions   were  matters   of  ^Ralston  v.  Moore,  b3  Ky.  571. 

substance.  *  Wetmore  v.  Laird,  5  Biss.  (C.  Ct  ) 

lAs   "his"  for    "its"   (Frostburg  IGO;  Hartshorn  v.  Dawson,  79  III.  108. 

Assoc.  V.  Brace,  51  Md.  508),  or  allud-  •''  As  where    the   word    "  known  " 

ing  to  a  "deed"  as  a  "mortgage."  was  omitted,    it   was  held  that  the 

Ives  V.  Kimball,  1  Mich.  308.  omission  was  fatal.     TuHy  v.  Davis, 

-As  where  the  word   "husband"  30  111.  103.     An  acknowledgment  of 

w;is  written  for  "  deed,"  in  the  clause  a   deed   purporting   to   be   made   by 

reading  "the  contents  and  meaning    Murray,  without  other  desigua- 

of  said  husband  were  fully  explained  tion   of  the   person   making  the  ac- 

and  made  known  to  her."     Calumet  knowledgment,  was  held  insuliicient 

Co.  V.   Russell,  68  III.  426;  and  see  to  oouvej' the  title  of  the  laud.     Hiss 

Quimby  v.  Boyd,  8  Cal.  194.  v.  McCabe,  45  ^Id.  77. 


532  CONVEYANCE. 

tant  does  this  appear  that  the  statute,  in  almost  every  instance 
of  a  prescribed  form,  has  made  provision  for  the  insertion  of 
the  officer's  title  in  the  bod}"  of  the  certificate.  But  while  of- 
ficial character  is  usually  shown  in  this  manner  it  may  be  suf- 
ficiently indicated  by  the  addition  of  the  title  of  office  to  the 
signature.'  So,  on  the  other  hand,  it  has  been  held  that  the 
omission  of  official  designation  in  the  signature  is  immaterial, 
provided  the  character  is  disclosed  in  the  body  of  the  certif- 
icate.^ This  would  be  particularly  true  where  a  certificate  of 
magistracy  accompanies  the  certificate.^ 

While  the  certificate  must  in  some  manner  purport  to  have 
been  made  by  an  officer  authorized  by  law  to  take  acknowl- 
edgments and  proof  of  deeds,  yet  it  is  not  necessary,  unless 
there  is  a  statutory  requirement  to  that  effect,  that  the  officer 
should  state  in  his  certificate  that  he  is  authorized  so  to  do,*  the 
certificate  itself  being  an  evidence  of  that  fact/ 

Even  when  proof  of  official  character  is  required,  where  ac- 
knowledgments are  taken  without  the  state  by  officers  author- 
ized to  take  the  same,  the  rule  does  not  extend  to  commissioners 
of  deeds  appointed  by  the  proper  authorities  of  the  state  for 
this  purpose,  and  no  proof  of  authority  is  required  in  such  cases 
beyond  the  ordinary  method  of  authentication." 

Where  acknowledgments  are  taken  in  a  foreign  country 
before  an  officer  unknown  to  the  law  of  the  state  where  the 
land  is  situated,  proof  of  authority  and  official  character  must 
be  made  to  render  the  act  valid ;  and  a  certificate  of  magistracy, 
and  in  proper  cases  of  conformity,  must  accompany  the  cer- 
tificate of  acknowledgment.'' 

The  same  rules  which  apply  to  the  description  and  designa- 
tion of  parties  apply  to  the  officers  making  the  certificate,  and 
verbal  inaccuracies  or  manifest  clerical  errors  are  not  material 
where  the  substance  is  correct.^ 

'  Russ  V.  Wingate,  30  Miss.  440.  «  Smith  v.  Van  Gilder,  26  Ark.  527. 

-Brown    v.    Farran,   3   Ohio,    140;  "  De  Segond  v.  Culver,  10  Ohio,  188. 

Colby  V.  McOmber,  71  Iowa,  469.  ^xhus,  an  acknowledgment  before 

*  Final  v.  Backus,  18  Mich.  218.  "  a  "  clerk  of  the  county  court  within 

<  Livingstone  v.  McDonald,  9  Ohio,  and  for  a  certain  county,  held,  there 

168.  being  but  one  clerk  of  that  court,  suf- 

5  Thompson  v.  Morgan,  6  Minn.  292;  ficient  to  autlioiize  the  presumption 

Thurman  v.  Cameron,  24  Wend.  (N.  that  the  acknowledgment  was  taken 

Y.)  87;   Harding  v.    Curtis,    45  111.  before    "the"     clerk.      Walker    v. 

252.     .  Owens,  25  Mo.  App.  587. 


EEGIS'IKATIU-V. 


533 


CHAPTER  XXT. 


REGISTRATION. 


§1. 

General  principles. 

§11 

2. 

Effect  of  registration. 

3. 

Wliat  instruments  must  be  re- 
corded. 

12 

4. 

Equities    and  equitable   inter- 

13 

ests. 

14 

5. 

Forged  instruments. 

15 

6. 

Government  lands. 

16 

7. 

Prerequisites  of  registration. 

17 

a 

Registration  as  affected  by  de- 

18 

fective  execution. 

19 

9. 

Imperfect  description. 

10. 

Failure  to  record  by  recording 
officer. 

Effect  of  erroneous  registra- 
tion. 

Instruments  recorded  in 
wrong  book. 

Index  entries. 

Failure  to  index. 

Deed  withdrawn  after  fUing. 

Priority. 

Destruction  of  record. 

Unrecorded  instruments. 

Continued  —  As  between  the 
parties. 


§  1.  Oeneral  principles.  Registration  has  been  held  to  be 
a  substitute  for  livery  of  seizin,  and  to  give  to  the  conveyance 
the  notoriety  intended  to  be  effected  by  that  ancient  ceremony. 
In  all  its  essential  features,  however,  the  system  of  registration 
practiced  in  the  United  States  is  original  and  peculiar  to  the 
country  of  its  inception  and  development.  It  is  entirely  un- 
known to  the  common  law,  and  in  all  respects  a  creation  of  the 
statute.  It  is  thought  to  have  been  derived  from  the  English 
statute  of  enrollments,  which  was  enacted  to  counteract  the  evil 
effects  resulting  from  the  practice  of  secret  conveyances  under 
the  statute  of  uses.'  The  enrolling  of  a  deed  did  not,  however, 
make  it  a  record,  but  only  a  memorial.  The  American  system 
of  registration  not  only  serves  as  a  means  of  preservation  of 
the  muniments  and  evidences  of  title,  whereby  the  instrument, 
as  under  the  English  statute,  shall  be  "kept  in  memory,"  but 
gives  to  them,  when  properly  executed,  certitied  and  transcribed 
in  conformity  to  law,  the  dignity  and  effect  of  ])ublic  records; 

1  This  statute  provided  that  every  from  its  date,  either  in  one  of  the 

bargain  and  sale  of  an  inheritance  or  courts  of  Westuiinstor,  or  before  the 

freehold  should  be  by  deed  indented  justices  and  clerk  of  the  peace  in  the 

and  enrolled  within  six  lunar  montlis  county  where  the  lands  were  situate. 


534:  CONVEYANCE. 

and  to  the  system  much  of  the  permanency  and  stability  of  our 
land  titles  is  attributable. 

§  2.  Effect  of  registration.  The  operation  and  effect  of 
registration  is  primarily  a  matter  of  statutory  regulation,  and 
in  all  of  the  states  enactments  defining  and  declaring  the  ef- 
fect of  a  properly-recorded  instrument  are  in  force.  In  gen- 
eral such  enactments  provide  that  every  instrument  executed 
and  certified  in  the  manner  prescribed  by  statute  shall,  from  the 
time  of  filing  the  same  for  record,  take  effect  as  against  cred- 
itors and  subsequent  purchasers  without  notice,  and  in  some 
instances  are  declared  to  impart  notice  to  all  persons  of  the 
contents  thereof.  So,  too,  it  was  formerly  held  to  be  the  rule, 
derived  from  a  construction  of  such  statutes,  that  every  deed 
properlj^  certified  and  recorded  afforded  constructive  notice  to 
the  world;  but  this  rule,  according  to  later  decisions,  has  been 
held  to  be  too  broad  an  enunciation  of  the  doctrine.  Such 
record  is  now  generally  held  to  be  constructive  notice  only  to 
those  who  are  bound  to  search  for  it  —  as  subsequent  purchasers 
or  mortgagees,  and  perhaps  all  others  who  deal  with  or  on  the 
credit  of  the  title  in  the  line  of  which  the  recorded  deed  be- 
longs. But  strangers  to  the  title  —  persons  claiming  ad- 
verselv  —  are  in  no  way  affected  by  such  record.^ 

§  3.  What  iustrumeuts  must  be  recorded.  As  registration 
is  solely  a  matter  of  statutory  creation,  the  rules  and  analogies 
of  the  common  law  have  little  application;  yet  as  the  statute, 
in  most  instances  at  least,  has  made  no  specific  designation  of 
the  class  of  titles  or  estates  to  be  thus  protected  and  preserved, 
recourse  must  be  had  to  cases  of  judicial  interpretation.  The 
substance  of  the  usual  provision  is  that  deeds,  mortgages, 
powers  of  attorneys  and  other  instruments  relating  to  or  af- 
fecting the  title  to  real  estate  shall  be  recorded  in  the  county 
in  which  such  real  estate  is  situated,  or,  if  such  county  is  not 
organized,  then  in  the  county  to  which  such  unorganized 
county  is  attached  for  judicial  purposes.^ 

iMaul  V.    Eider,    59  Pa.    St.    167;  by  a  legal  establishment  of  county 

Corbin  v.  Sullivan,  47  Ind.  356;  Gil-  lines  to  be    is  sufficiently  recorded 

lett  V.  Gaffney,  3  Colo.  351 ;  Carbine  notwithstanding  a  change  which  ex- 

V.  Pringle,  90  111.  302.  eludes  the   land  from  that  county. 

2  A    deed    recorded    in    a    county  If,  however,  the  county  lines  have 

where  at  the  time  the  land  is  shown  not  been  established  at  the  time  of 


REGISTRATION.  535 

Upon  general  j)rinci[)lcs  this  would  include  every  right, 
claim  or  interest  in  land;  and  indeed  such  is  its  general  effect 
and  import  whenever  the  right,  claim  or  interest  is  of  a  per- 
manent character.  Thus,  a  deed  granting  a  permanent  right 
of  way  is  within  the  recording  acts,  and  unless  recorded  can- 
not operate  against  subsequent  purchasers  for  value  and  with 
out  notice.^  A  bond  for  conveyance  is  subject  to  the  same 
rule,'  and  the  assignment  of  such  a  bond  has  been  held  to  come 
clearly  within  the  provisions  of  the  registration  act;  and  unless 
so  recorded  such  assignment  will  not  take  effect  as  against  a 
subsequent  honafide  purchaser  or  incumbrancer  without  notice.^ 

It  would  seem,  however,  that  the  statute  requiring  deeds  or 
conveyances  to  be  recorded  does  not  apply  to  leases  for  years, 
nor  to  mortfjasfes  of  such  leasehold  estates.* 

§  4.  Equities  and  equitable  interests.  jSTotwithstanding 
that  the  earlier  cases  announced  a  different  rule,  the  general 
doctrine  now  is  that  equitable  estates  and  interests  as  well  as 
legal  are  embraced  within  the  intent  and  operation  of  the 
recording  acts;^  and  \vhere  an  instrument  is  properly  record" 
able,  and  due  regard  has  been  had  to  all  the  preliminaries  of  ex- 
ecution, acknowledgment,  etc.,  the  record  of  the  same  becomes 
constructive  notice  not  only  that  the  instrument  exists,  but 
of  its  contents,  and  of  whatever  rights,  interests  or  estates, 
either  legal  or  equitable,  that  may  be  created  b}'  or  arise  from 
its  provisions. 

Thus,  the  registry  of  a  mortgage  is  of  itself  notice  in  law 
to  all  subsequent  purchasers  of  the  lien  created  thereby.  So, 
also,  the  record  of  a  trust  deed  affords  notice  to  every  one  of 
the  existence  and  terras  of  the  trust ;  and  it  seems  that  the  reg- 
istry of  a  mere  equitable  mortgage  or  incumbrance  is  notice 
to  a  subsequent  purchaser  of  the  legal  estate  so  as  to  entitle 
such  mortgage  to  a  preference.® 

the  record,  the  person  recording  acts  *Tarbell   v.    West,   86  N.  Y.  287; 

at   his   peril.     Jones   v.    Powers,    05  Wilder  v.  Brooks,  10  Minn.  50;  Dig- 

Tex.  207.  man  v.  McCalluin,  47  Mo.  372 ;  Alder- 

1  Prescott  V.  Beyer,  34  Minn.  493;  son  v.  Ames,  6  Md.  52;  Worley  v. 
Worley  v.  State,  7  Lea  (Tenn.),  382.  State,  7  Lea  (Ten n.),  382. 

2  Welles  V.  Baldwin,  28  Minn.  408.  6  Parkist   v,    Alexander,    1    Johns. 

3  McFarran  v.  Knox,  5  Cal.  217.         Ch.  (N.  Y.)  394. 
••  Hutchinson  v.  Bramhall,  42  N.  J. 

Eq.  372. 


530  CONVEYANCE. 

§  5.  Forged  instruments.  The  provisions  x)f  the  recording 
acts  have  no  application  to  forged  deeds  and  other  instru- 
ments, for  the}^  have  no  effect  upon  the  title  and  are  not  enti- 
tled to  record.  However  innocently  one  may  have  purchased 
under  such  recorded  deed,  he  has  no  rights  against  the  true 
owner  of  the  land.^ 

§  6.  GfOvernment  lands.  Provision  is  generally  made  in 
those  states  which  contain  lands  belonging  to  the  federal  gov- 
ernment for  the  registration  of  duplicate  receipts  and  other 
evidences  of  purchase,  as  well  as  for  the  deeds  and  patents 
which  may  follow;  yet  the  registration  laws  of  the  state  do 
not  apply  to  the  disposition  of  lands  belonging  to  the  United 
States,  but  the  rights  of  parties  will  be  governed  by  the  regu- 
lations established  by  congress  until  the  title  has  finally  passed 
from  the  government.' 

§  7.  Prerequisites  of  registration.  The  whole  system  of 
registration  of  conveyances,  as  well  as  the  effect  thereof,  is 
purely  statutory,  and  in  its  practical  operation  somewhat  in 
derogation  of  common-law  principles.  By  the  statute  certain 
formalities  are  frequently  required,  which  in  the  main  relate 
to  execution  and  the  means  of  proof;  and  the  due  observance 
of  these  formalities  is  usually  made  essential  to  the  giving  of 
constructive  notice,  and  in  some  instances  to  the  right  to  re- 
cord. Where  a  statute  provides  that,  as  a  prerequisite  to  reg- 
istration, a  deed  shall  be  acknowledged  before  some  duly- 
authorized  officer,  the  mere  recording  of  a  deed  not  acknowl- 
edged in  accordance  with  the  statute  is  not  constructive  notice 
to  any  one  of  the  contents  of  such  deed.^  So,  also,  it  has  been 
held  that  a  deed  is  not  entitled  to  be  recorded  where  it  does 

1  Where  a  person  took  a  deed  to  held,  that  the  erasure  was  a  forgery, 

one  of  his  sons,  and  also  to  a  grand-  and  as  such  did  not  affect  the  title  of 

son  of  the  same  name  as  his  own  ex-  the  real  grantees.     Pry  v.  Pry,  109 

cept  the  addition  of  a  middle  initial  111.  466. 

letter,  the  grantees  being  minors,  and  ^  David   v.    Rickabaugh,  33  Iowa, 

the  grandfather,    the    custodian    of  540;  Betser  v.  Rankin,  77  111.  289. 

such  deed,  after  the  death  of  his  son,  *  Bishop  v.  Schneider,  46  Mo.  472 

one  of  the  grantees,  erased  his  name  Galway  v.    Malchon,    7    Neb.    285 

and  the  middle  initial  in  the  other  Westerman  v.    Foster,  57   Ind.  408 

grantee's  name  from  the  deed,  and  Pope  v.  Henrj',  24  Vt.  560 ;  McMinn 

put  the  deed  so  altered  and  changed  v.  O'Connor,  27  Cal.  238;  Holliday  v. 

on  record,  thereby  showing  a  con-  Cromwell,  26  Tex.  188;  Reynolds  v. 

veyance  to  himself,  the  grandfather,  Kingsbury,  15  Iowa,  238. 


KEOISTEATION.  537 

not  appear,  except  inferentially  from  the  seal,  of  what  city, 
county  or  state  the  notary  was  who  attempted  to  take  the 
acknowledgment.' 

§  8.  Kegistration  as  attected  Uy  defective  execution.  The 
rule  is  general  that  a  (Icrcctively  acknowledged  d(,'ed  or  a  deed 
without  acknowledgment,  although  recorded,  will  not  impart 
constructive  notice  to  subsequent  purchasers  for  a  valuable 
consideration;'-  and  it  has  further  been  held  that  if  it  is  so 
recorded  without  acknowledgment,  the  record  is  not  admissi- 
ble as  evidence  of  title  in  an  action  to  recover  the  lands  so 
conveyed,'  The  rule  is  more  strictly  applied  in  some  states 
than  in  others;  and  it  has  been  held  that  even  where  instru- 
ments purport  to  have  been  acknowledged,  if  such  acknowledg- 
ments were  defectively  made,  or  if  the  certificates  thereof  fail 
to  embody  all  the  statutory  requirements  in  a  substantial  man- 
ner, the  effect  of  registration  is  practically  the  same  as  though 
no  acknowledgment  had  been  made/ 

In  some  states  where  the  deed  is  so  defectively  executed  as 
to  pass  no  estate,  it  is  by  law  excluded  from  registration;  but 
generally  this  effect  follows  only  for  non-compliance  with  the 
statute  in  respect  to  acknowledgment.^ 

The  rule  as  stated,  while  undoubtedly  that  which  prevails 
in  a  majority  of  the  states  where  it  is  expressed  and  declared 
by  statute,  has  in  several  instances  been  denied,  while  the  stat- 
utes of  some  of  the  states  have  adopted  a  different  policy  with 
regard  to  the  effect  of  registration.  By  the  language  of  these 
statutes  everything  is  comprehended  that  may  relate  to  or  af- 
fect title,  and  every  such  instrument  may  be  recorded  with- 
out any  qualification  as  to  whether  the}'^  be  sufficient  in  law 
or  not  to  effectuate  the  object  purported  on  their  face.**    AVhile 

1  Nor  does  the  index  of  such  a  deed  3  Westeniian  v.  Foster,  57  lud.  AOH. 

charge  with  constructive  notice  of  its  <  See   Greenwood   v.  Jenswold,  69 

contents.     Greenwood  v.  Jenswold,  Iowa,  53;  Cox  v.  Wyat,  20   W.  Va. 

C9    Iowa,    53;    and    see    Schults  v.  807. 

Moore,     1    McLean    (C,     Ct.),    520;  s  See,  generally.  Burnhnni  v.  Clian- 

Mcilinn  v.  O'Connor,  27  Cal.  238.  dler,  15  Tex.  441 :  Galpin  v.  Abbott. 

-Cox    V.    Wyat,    26    \V.   Va.   807;  0  Mich.  17;  Pringle  v.  Dunn,  37  Wis. 

Woolfolk  V.  (iraniteville  Mfg.  Co.  22  449;    Monroe   v.    Hamilton,   60   Ala. 

S.  C.  332;  Bishop   v.    Schneider,    46  227:    Parret   v.    Shaubliut,    5   Minn. 

Mo.  472;  Galway  v.  Malchon,  7  Neb.  323;  Reed  v.  Coale,  4  Ind.  283. 

285;  Herndon  V.  Kimball,  7  Ga.  432;  «See   Morrison   v.    Brown,   83   111. 

Carter  v.  Champion,  8  Conn.  549.  502;  Brown  v.  Simpson,  4  Kan.  76. 


538  CONVEYANCE. 

the  states  holding  this  doctrine  are  in  the  minority,  it  would 
still  seem  that  they  are  supported  by  the  better  reason.  The 
great  object  of  registration  is,  or  should  be,  to  make  the  rec- 
ords the  great  depositories  of  land  titles  of  the  states;  and  for 
that  reason  everv  instrument  in  writing  relating  to  land  should 
have  the  privilege  of  record,  and,  when  once  recorded,  should 
impart  notice  to  the  world  of  everything  therein  stated  as  well 
as  of  everything  that  maj''  be  necessarily  implied  from  the 
words  of  such  recorded  instruments.  Acknowledgment  is  no. 
where  held  essential  to  the  validity  of  deed  as  between  the 
parties;  and  as  a  rule  the  statute  relating  to  acknowledgments 
only  goes  to  the  extent  of  providing  that,  if  a  deed  be  acknowl- 
edged and  certified  in  the  manner  prescribed,  the  original  may 
be  read  in  evidence  without  proof  of  the  execution.  To  say, 
therefore,  that  the  record  of  an  unacknowledged  deed  is  a 
nullity  seems  a  perversion  of  the  plain  intent  of  the  law;  yet 
the  fact  remains  that  this  anomaly  exists  in  a  majority  of  the 
states,  either  by  express  enactment  or  judicial  construction. 

A  deed,  though  not  entitled  to  record,  but  which  has  been 
recorded,  while  it  does  not  operate  as  constructive  notice,  may 
operate  as  actual  notice;^  and  a  person  searching  the  records 
may  be  bound  by  the  information  there  obtained  when  he  has 
actually  inspected  an  instrument  purporting  to  affect  the  title 
under  investigation. 

§  9.  Imperfect  description.  To  charge  a  purchaser  with, 
notice  as  to  any  particular  tract  of  land,  such  land  should  be 
so  described  as  to  render  its  location  definite  and  certain.  The 
general  subject  of  description  has  been  so  thoroughly  discussed 
in  other  parts  of  this  work  that  no  attempt  at  recapitulatioa 
will  here  be  made;  yet,  as  an  example  of  what  is  meant,  it  may 
be  said  that  a  conveyance  of  lands  without  description  of 
boundary  or  location,  but  merely  as  "  all  other  lands  owned  by 
the  vendor  in  the  state  of  Louisiana,"  while  it  might  operate 
as  between  the  parties,  is  not  notice  as  to  any  particular  tract 
conveyed.^  The  effect  of  registration  as  notice  is  generally 
held  to  be  the  tenor  and  effect  of  the  instrument  as  it  appears 
upon  the  record;'  and  while  the  authorities  are  divided  in  re- 

1  Musgi'ove  V.  Bonser,  5  Oreg.  313 ;       2  Green    v.    Witherspoon,    37    La. 
Bass  V.  Estill,  50  Miss.  300;  Hastings   Ann.  751. 
V,  Cutler,  24  N.  H.  481.  3  Shepherd  v.  Burkhalter,    13  Ga. 


KEGI8TEATI0N.  530 

gard  to  errors  which  may  iuterveno  in  transcribing,  if  the  in- 
strument is  correctly  spread  upon  the  records  the  only  notice 
it  allords  is  of  its  contents. 

§  10.  Failure  to  record  by  recordiiii;  ollicer.  As  to  the 
effect  of  a  failure  by  the  recording  ollicer  to  properly  record 
or  transcribe  an  instrument  left  with  him  for  that  purpose,  the 
authorities  are  not  agreed.  It  is  held  in  some  states  that  a 
])urchaser  of  real  estate  who  deposits  his  deed  for  record  dis- 
charges thereby  his  duty  to  the  i)ublic.  If,  through  the  fault 
of  the  register,  the  deed  is  not  recorded,  such  failure  will  not 
prejudice  the  purchaser,  even  in  favor  of  a  subsequent  pur- 
chaser without  notice,  unless  the  first  purchaser,  after  knowl- 
edge of  the  defect  in  the  record,  is  guilty  of  laches  in  failing 
to  give  notice  of  his  title.' 

§  1 1.  Eff;ict  of  erroneous  registration.  There  is  a  marked 
difference  of  opinion  among  courts  and  jurists  with  regard  to 
the  effect  of  an  error  in  transcription  after  an  instrument  has 
been  properly  lodged  in  the  office  of  registration.  Upon  the 
one  hand  it  is  held  that  the  records  are  constructive  notice 
only  of  that  which  they  actually  disclose,  and  that  purchasers 
have  a  right  to  rely  upon  the  records  as  indicating  the  true 
state  of  the  title;  and  that  where  a  purchaser,  having  duly 
examined  the  records,  purchases  with  the  knowledge  thereby 
obtained,  he  will  be  unaffected  by  any  error  or  discrepancy 
that  may  have  intervened  through  the  acts  of  the  recording 
officer  in  transcribing  the  instruments.^  The  theory  of  this 
class  of  cases  proceeds  largely  upon  the  old  and  well-settled 
law  of  notice,  and  that  the  essential  character  of  the  registry 
is  to  quiet  and  confirm  titles,  the  statutes  creutmg  the  same 
being  intended  for  statutes  of  repose.  Under  them  a  purchaser 
is  under  no  obligation  to  ascertain  that  the  instruments  have 
been  correctly  copied,  and  the  burden  of  seeing  that  their 
deeds  have  been  j)roperly  recorded  devolves  on  the  original 

443;  Stevens  V.Hampton,  46  Mo.  404;  v.  McNichol,  76  Me.  314;  Pringle  v. 

Miller  v.  Bradford,  12  Iowa,  14;  Prin-  Dunn,  37  Wis.  449;  Thorp  v.  MLirill, 

gle  V.  Dunn,  37  Wis.  465;  Barrows  v.  21  Minn.  336;  Chamberlain  v.  Bell,  7 

Baughman,  9  Mich.  213.  Cal.  292;  Terrell   v.  Andrew  Co.  4A 

1  Lee  V.  Bermingliani,  30  Kan.  312.  Mo.   309;    Mutual   Life   Ins.    Co.    v, 

2  Gilchrist  v.  Gough,  63   Ind.  576 ;  Dake,  87  N.  Y.  257. 
Miller  v.  Bradford,  12  Iowa,  14;  Hill 


540  CONVEYANCE. 

grantees.'  It  is  contended  in  support  of  this  doctrine  that  the 
statute  providing  that  a  deed  shall  impart  notice  from  the  time 
it  is  filed  for  record  applies  only  where  its  contents  have  been 
correctly  spread  upon  the  records;^  that  it  was  never  intended 
to  impose  upon  the  purchaser  the  burden  of  entering  into  a 
long  and  laborious  search  to  find  out  whether  the  recorder 
had  faithfully  performed  his  duty.^  It  must  be  admitted  that 
there  are  strong  grounds  upon  which  to  maintain  this  doc- 
trine; and  these  grounds  are  not  only  fortified  and  supported 
by  the  special  reasons  given,  but  by  the  general  principles  of 
law  as  well.  The  uncertainty  that  must  attend  sales  of  real 
estate  if  the  purchaser  cannot  rely  upon  the  records,  but  must 
first  trace  up  the  original  deed  to  see  that  it  is  correctly  re- 
corded, is  manifest,  while  upon  general  principles  the  obliga- 
tion of  giving  notice  should  rest  upon  the  party  holding  the 
title,  and  who,  if  he  fails  in  this  duty,  sbould  suffer  the  con- 
sequences, and  not  an  innocent  party. 

The  opposite  view  is  taken  by  a  large  and  apparently  well- 
considered  class  of  cases,  in  which  it  is  held  that  a  grantee 
who  files  his  deed  for  record  with  the  proper  officer  has  dis- 
charged the  only  duty  which  the  law  imposes  upon  him,  and 
that  from  thenceforth  his  deed  imports  notice  and  will  prevail 
notwithstanding  its  contents  have  not  been  correctly  tran- 
scribed. Should  a  subsequent  purchaser  be  misled  thereby  to 
his  injury,  his  only  remedy  is  against  the  recording  officer  who 
has  thus  neglected  his  duty.*  It  is  contended  that  the  state, 
having  provided  the  place  and  means  of  registration,  and 
invited  a  grantee  to  deposit  his  deed  for  record,  must  after- 
Avard  see  to  it  that  the  work  is  properly  performed;  that  the 
grantee  is  not  a  guarantor  of  compliance  by  the  recording 
officer  with  the  law  as  to  recording,  and  that  if  any  one  sufl'ers 
from  the  neffligence  of  the  ofiicer  he  must  seek  redress  from 
the  officer.^ 

1  Mutual  Life  Ins.  Co.  v.  Dake,  87  Bermingham,  30  Kan.  312;  Mims  v. 
N.  Y.  263.  Mims,  35  Ala.  23 ;  Mangold  v.  Barlow, 

2  Terrell  v.  Andrew  County,  44  Mo.  61  Miss.  593;  Brooke's  Appeal,  64  Pa. 
309.  St.  127;  Nichols  v.  Reynolds,  1  R.  I. 

3  Terrell  v.  Andrew  County,  44  Mo.  30 ;  Throckmorton  v.   Price,  28  Tex. 
309.  605. 

<Oats  V.  Wall,  28  Ark.  244;  Mer-  5  Mangold  v.  Barlow,  61  Miss.  597. 
rick   V.  Wallace,   19  111.  486;  Lee  v. 


REGISTRATION.  541 

§  12.  Instruments  reconlcMl  inwron;;  book.  TLe  methods 
of  registration  are  very  similar  tlirougliout  the  United  States, 
and  from  motives  of  convenience  it  is  customary  in  most  states 
to  employ  two  sets  of  books:  one  designed  for  deeds  or  all 
classes  of  absolute  conveyances,  and  one  for  mortgages  or  con- 
veyances subject  to  defeasance.  Where  such  practice  prevails, 
and  where  the  law  directs  that  deeds  and  conveyances  of  abso- 
lute interests  shall  be  recorded  in  the  "  books  of  deeds,''  it 
would  seem  that  the  record  of  a  deed  in  a  book  of  morto:ages 
is  wholly  inoperative  so  far  as  respects  its  capacity  to  furnish 
constructive  notice,^  and  that  a  mortgage  recorded  in  a  book 
of  "deeds"  is  subject  to  the  same  rule.- 

§  13.  Index  entries.  While  the  index  is  not,  properly 
speaking,  a  part  of  the  records,  index  entries  are,  however, 
frequently  held  sufficient  to  charge  notice;^  and  that,  too,  even 
though  no  description  of  the  property  is  entered,  but  simply 
the  words  "see  record,''^  or  "certain  lots  of  land;'"  for  if 
enough  is  shown,  it  is  claimed,  to  induce  inquiry  and  put  a  pru- 
dent man  on  guard,  notice  is  thereby  afforded. 

§  14.  Failure  to  index.  In  the  strict  and  proper  accepta- 
tion of  the  term  a  deed  is  properly  recorded  when  it  has  been 
spread  upon  the  public  records.  An  index  is  at  best  but  a  con- 
venient method  provided  for  pointing  out  or  indicating  where 
the  record  may  be  found.  Its  office  is  to  facilitate  search, 
and  as  a  convenient  aid  to  those  having  occasion  to  examine 
the  records.^  Properly  speaking  it  forms  no  part  of  the  rec- 
ords." The  duty  of  keeping  proper  indices  usually  devolves 
on  the  recorder  by  virtue  of  the  statute,  and  they  are  ordi- 
narily a  part  of  the  designated  books  of  his  office;  but  even 
while  it  may  be  the  duty  of  the  recorder  to  keep  a  proper  in- 

1  Leech's  Appeal,  44  Pa.    St.  140;  •«  Wliite  v.  Hampton,  13  Iowa, '260. 

Colomer  v.  Morgan,  13  La.  Ann.  203;  ^Bostwick  v.  Powers,  12  Iowa,  456. 

Grinstone  v.  Carter,  3  Paige  (N.  Y.),  *  Green  v.  Garrington,  IG  Ohio  St. 

421.  548. 

2 Fisher   v.   Tunnard,   25  La.  Ann.  'Bishop  v.  Scimeider,  4(5  Mo.  472; 

179;  James  V.  Morey,  2  Cow.  (N.  Y.)  Stockwell   v.   McHenry,  107  Pa.  St. 

246;  Calder  v.  Chapman,  52  Pa.  St.  237:   Chatham   v.   Bradford,  50  Ga. 

359.  327:  Curtis  v.  Lyman,  24  Vt.  338.    A 

3Disque  v.  Wright,  49   Iowa,  541:  different    rule    seems  to  prevail   in 

Sinclair  v.    Slawson,   44   Mich.   123;  Iowa.    See  Howe  v,  Thayer,  49  Iowa, 

Swan  V.  Vogel,  31  La.  Ann.  38.  154. 


542  CONVEYANCE. 

dex  of  his  books  of  registration,  so  that  one  searching  the 
records  may  easily  find  what  is  or  is  not  contained  therein, 
yet  a  conveyance  proper!}'-  filed  and  copied  on  the  records  is 
recorded  within  the  meaning  of  the  law,  and  imports  notice 
to  subsequent  purchasers,  notwithstanding  the  failure  of  the 
recording  officer  to  index  it.^ 

§  15.  Deed  withdrawn  after  filing.  The  rule  as  to  the 
time  when  a  deed  becomes  effective  as  notice  after  filing  is 
not  altogether  uniform,  but  in  a  majority  of  the  states  a  deed 
imparts  notice  of  its  contents  from  the  time  the  same  is  filed 
for  record.  But  where  after  a  deed  has  been  duly  filed,  and 
before  registration  it  is  withdrawn  b}'  the  party  taking  a  bene- 
ficial interest  under  it,  a  complicated  question  is  raised  as  to 
its  effect.  It  was  held  in  one  case  that  during  the  time  the 
deed  was  away  from  the  office,  the  law  making  the  filing  of  a 
deed  for  record  notice  to  subsequent  purchasers  was  suspended, 
yet  that  a  statement  of  the  fact  of  filing  and  withdrawal  was 
sufficient  to  put  upon  inquiry  a  third  party  who  proposed  to 
purchase  the  property.-  In  another  case,  where  a  deed  was 
withdrawn  before  actual  registration,  it  was  held  that  the 
noting  of  it  on  the  books  of  the  recorder  was  evidence  of  the 
filing,  but  that  by  its  withdrawal  its  priority  was  lost,  and 
that  it  would  only  take  effect  from  the  date  of  its  return  to 
the  registry.^ 

§  16.  Priority.  While  it  is  undoubtedly  true  that  an  un- 
recorded deed  will  pass  to  the  grantee  all  the  title  of  the 
grantor,  and  as  between  the  parties  is  effectual  for  all  purposes, 
3'et  for  tiie  purposes  of  the  recording  acts,  and  in  furtherance 
of  the  peculiar  doctrine  of  constructive  notice  which  forms 
one  of  their  chief  characteristics,  in  a  conveyance  the  absolute 
title  may  be  said  to  rest  with  the  grantor  and  his  heirs,  in  a 
sort  of  abeyance,  to  vest  irrevocably  only  upon  the  recording 
of  the  deed;  and  it  will  vest  in  the  first  grantee  in  condition 
to  receive  the  grant  who  shall  place  his  deed  upon   record.* 

1  Bishop  V.  Schneider,  46  Mo.  473.  *  Hickman    v.     Perrin,   6    Coldw. 

2Lawton  v.  Gordon,  37  Cal.  202.  (Ten n.)  135. 

In  this  case  a  deed  was  filed  in  the  *  Youngblood   v.  Vastine,    46   Mo. 

recorder's  ottice  for  record,  but  be-  239;    Hutchinson    v.    Harttman,    15 

fore  it  was  recorded   it   was   with-  Kan.  133. 
drawn  by  the  purchaser,  and  after 
some  time  returned  for  record. 


REGISTRATION.  543 

But  the  rule  of  law  which  allows  a  subsequent  recorded  deed, 
made  on  a  valuable  consideration,  to  take  precedence  of  a 
prior  unregistered  deed  only  applies  when  both  parties  claim 
under  the  same  grantor/  and  where  the  party  who  seeks  the 
protection  of  the  statute  has  acted  in  good  faith."  One  who 
has  notice  of  the  equities  of  prior  purchasers  before  he  pays 
the  purchase  price  of  land  cannot  claim  the  rights  of  a  Ijona 
fide  purchaser;  and  so  a  conveyance,  tiiough  duly  recorded, 
passes  no  title  whatever  when  taken  with  a  knowledge  of  the 
existence  of  an  unrecorded  dced,'^  or  at  best  the  land  in  the 
hands  of  such  purchaser  is  subject  to  the  rights  of  the  grantee 
named  in  such  prior  deed.'* 

The  protection  of  the  recording  acts,  which  declare  an  un- 
recorded deed  void  as  against  a  subsequent  purchaser  in  good 
faith  and  for  a  valuable  consideration  whose  deed  shall  be  first 
recorded,  is  not  confined  to  a  subsequent  purchaser  immedi- 
ately from  the  same  grantor,  but  applies  to  one  who  takes 
from  him  through  mesne  conveyances;  and  they  protect  him, 
if  a  purchaser  in  good  faith  and  for  value,  although  the  inter- 
mediate grantees  were  chargeable  with  bad  faith  or  paid  noth- 
ing.^ But  a  purchaser  from  one  who  bought  with  notice  of  a 
prior  unrecorded  deed  given  by  his  grantor  to  a  third  person 
has  constructive  notice  of  such  prior  deed,  if  it  be  recorded 
before  the  execution  of  his  conveyance;  and  he  is  not  a  pur- 
ciiaser  in  good  faith,  although  the  deed  to  his  grantors  may 
have  been  recorded  before  the  record  of  such  prior  deed.  The 
l>rior  deed  in  such  a  case  will  take  precedence.^ 

A  quitclaim  deed  received  in  good  faith  and  for  a  valuable 
consideration,  and  which  is  recorded  before  a  prior  deed  of 
bargain  and  sale,  will  prevail  over  such  prior  deed.'^ 

§  17.  Destruction  of  record.  The  doctrine  of  constructive 
notice  has  been  productive  of  several  seeming  anomalies,  prin- 
cipal among  which  is  the  effect  to  be  given  to  records  which, 
having  once  been  properly  made,  are  subsequently  destroyed. 

I  Rodgers  V.  Burcliard,  34  Tex.  441.  counsel  erroneously  told     liioi  was 

2Musgrove  v.  Bonser,  5  Oreg.  313.  invalid.     Gilbert  v,  Jess.  31  Wis.  110. 

•'  Musgrove  v.  Bonser,  5  Oreg.  313.  »  Fallass  v.  Pierce,  30  Wis.  448. 

<  As  where  a  purchaser  takes  with  6  Mahoney  v.  Middleton,  41  Cal.  41. 

actual  knowledge  of  a  prior,  adverse  "Graff  v.  Middlttou,  43  Cal.  341; 

but  unattested  conveyance  which  his  Marshall  v.  Roberts,  18  Minn.  405. 


544  CONVEYANCE. 

The  current  of  authority  seems  to  hold  that  a  grantee  dis- 
charges every  legal  duty  when  he  files  his  deed  for  record,  and 
that  after  a  deed  has  been  duly  recorded  the  partial  or  total 
destruction  of  the  record  in  no  manner  affects  the  constructive 
notice  afforded  by  its  being  recorded.^ 

§  IS.  Unrecorded  instruinents.  Notwithstanding  the  posi- 
tive and  unqualified  statements  of  the  recording  acts,  intend- 
ing purchasers  are  still  lield  in  equity  to  a  strict  exercise  of 
good  faith,  and  a  diligent  inquiry  as  to  all  matters  brought  to 
their  notice  which  may  affect  or  impair  the  title  of  the  prop- 
erty which  forms  the  subject  of  the  sale.  If  at  the  time  of 
making  his  contract  a  purchaser  has  notice  of  a  prior  unre- 
corded deed,  he  is  regarded  as  acting  in  bad  faith ;  and  neither 
the  principles  of  justice  nor  the  policy  of  the  law  will  allow 
him  to  avail  himself  of  his  priorit}'  of  record  to  supersede  the 
claims  of  a  hona  fide  purchaser  and  permit  him  to  triumph  in 
his  fraud.2  JSTo  principle  of  the  law  of  notice  seems  to  be  bet- 
ter or  more  firmly  established  than  this;  and,  so  far  as  the 
practical  application  of  the  rule  is  concerned,  it  makes  no  dif- 
ference whether  the  unrecorded  instrument  confers  a  legal 
right  or  a  mere  equity.  Hence,  the  purchase  of  land  with  full 
knowledge  of  the  fact  that  the  vendor  has  contracted  to  con- 
vey to  another  subjects  the  purchaser  to  the  rights  and  equities 
of  the  claimant  under  the  contract.* 

It  is  difficult,  however,  to  lay  down  a  general  rule  as  to  what 
facts  will  in  every  case  be  sufficient  to  charge  a  party  with 
notice,  or  put  him  on  inquiry  whether  a  prior  deed  has  been 
made.  The  information  received  must  be  of  that  character 
that  a  prudent  person,  by  the  exercise  of  reasonable  and  ordi- 
nary diligence,  could  upon  inquiry  and  investigation  arrive  at 
the  fact  of  the  existence  of  such  prior  conveyance.*  It  has 
been  held  that  whatever  is  notice  enough  to  excite  attention 
and  put  a  party  on  his  guard  and  call  for  inquiry  is  notice  of 
everything  to  which  such  inquiry  might  have  led;  and  every 


1  Myers  v.  Buchanan,  46  Miss.  397;  117;  Claibourne  v.  Holmes,  51  Miss. 

Steele  v.  Boone,  75111.  457;  Gammon  146. 

V.  Hodges,  73  111.  140;  Armentrout  v.  3 Glover  v.  Fisher,  11  III.  606. 

Gibbons,  30  Gratt.  (Va.)  632.  •»  Chicago  v.  Witt,  75  111.  211. 

-McConnel  v.   Reed,  4  Scam.  (111.) 


KEGISTRATION.  545 

unusual  circumstance  is  a  grourl  of  suspicion  and  prescribes 
inquiry.' 

Bare  suspicion  of  title  in  another  will  not  be  sufficient  to 
j'aise  an  inference  of  fraudulent  intent;-  but  whore  a  party  has 
lieard  of  a  sale  of  the  land  before  he  purchased,  and  from  a 
source  entitled  to  reasonable  credit,  and  under  circumstances 
not  likely  to  be  forgotten,  it  seems  a  duty  would  devolve  upon 
him  of  tracing  out  the  matter  and  ascertaining  its  truth.^  It 
is  not  necessary  that  actual  notice  of  the  existence  of  a  deed, 
as  used  in  contradistinction  to  the  constructive  notice  given  by 
a  record,  should  be  proved  by  directand  positive  evidence  that 
the  subsequent  purchaser  actually  knew  that  such  deed  was  in 
existence.  The  fact  of  notice  may  be  proved,  like  any  other 
fact,  b}'  any  proper  evidence,  direct  or  circumstantial.* 

But  while  an  unrecorded  deed,  as  a  general  rule,  is  void  as 
against  a  subsequent  deed  taken  in  good  faith  and  duly  re- 
corded, the  question  seems  to  be  involved  in  some  doubt  where 
the  subsequent  deed  is  a  mere  quitclaim  of  such  interest  as 
the  grantor  may  have.^  The  subject  of  quitclaims  has  beeu 
a  theme  of  great  diversity  of  opinion  in  the  United  States, 
and  productive  of  a  number  of  contradictory  decisions;  but  the 
volume  of  authority  seems  to  hold  that  a  purchaser  by  quit- 
claim is  not  to  be  distinguished  from  a  purchaser  by  bargain 
and  sale  or  with  warranty,  unless  there  is  something  in  the 
deed  to  put  the  purchaser  on  notice.'' 

§  1 9.  Continued  —  As  between  the  parties.  As  between  the 
purchaser  of  land  and  his  vendor,  it  is  of  no  importance  that 

•  Russell  V.  Rauson,  76  111.  167.  ''On  the  question    as    to   whether 
'- McConnel  v.  Reed,  4  Scam.  (111.)  an  unrecorded  deed   would  be  void 
117.     The  mere  fact  that  a  purchaser  where  the  subsequent  deed   was  a 
of  land  sometime  before  his  purchase  mere  quitclaim    of  such  interest  as 
liad  an  interview  with  his  grantor,  remained  in    the   grantor,    and    fol- 
who  informed  him  that  at  that  time  lowed  sundry  mesne  conveyances  to 
he  was  not  able  to  make  a  good  title,  persons  who  were  affected  by  notice 
but  in  a  short  time  he  would  be,  is  of  the   first   grantee's  equities,    the 
not  sufficient  to  give  the  purchaser  court  in  De  Veaux  v.  Fosbender,  57 
notice  of  the  existence  of  an  adverse  Mich.  579,  was  equally  divided.     In 
unrecorded  deed  to  the  same  land.  AVisconsin  a  quitclaim  deed  is  a  con- 
Chicago  V.  Witt,  75  111.  211.  veyance,  which,  when  recorded,  pro- 
3  Cox  v.  Milner,  23  111.  476.  tects  the  grantee  against  a  prior  un- 
■•  Maupin  v.  Emmons,  47  Mo.   304.  recorded  warranty  deed.     Cutler  v. 
*See     "Quitclaim    deeds,"     arite.  James,  64  Wis.  173. 
35 


546  CONVEYANCE. 

the  conveyance  be  recorded ; '  and  the  same  rule  holds  good  be- 
tween the  holder  of  the  first  conveyance  and  a  subsequent  pur- 
chaser from  the  same  vendor,  where  the  latter  has  notice  of 
the  prior  deed,  or  when  his  purchase  is  not  for  a  good  and 
valuable  consideration.'^ 

>  Dozier  v.  Barnett,  13  Bush  (Ky.),   Jackson  v.  West,  10  Johns.  (N.  Y.) 
457;  Raines  v.  Walker,   77  Va.   93;   466. 

2  Maupin  v.  Einmons,  47  Mo.  304. 


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